You’ve probably heard about the “RICA” act. RICA stands for the Regulation of Interception of Communications and Provision of Communication Related Information.
It is in terms of the RICA act that you have to register your SIM card using your identity document and residential address, for example. This same act allows the state to intercept your phone calls under certain circumstances. One example entails law enforcement officials tapping your phone as part of their crime investigations. This obviously poses a privacy invasion. This week, the AmaBhungane Centre for Investigative Journalism challenged the constitutionality of such privacy invasions in a news gathering context.
As a journalist, I have had my phone calls tapped as have many of my colleagues. This poses a problem when it comes to the protection of anonymous sources and ‘off the record’ information. South African journalism relies on source anonymity – a trust-based anonymity granted to sources of especially investigative reporters. The reasons for granting anonymity include protecting such sources against serious safety risks and intimidation. It protects whistle-blowers against bullying from whose criminal deeds they seek to expose. ‘Off the record’ information describes information that is not to be published, but which a source provides to a journalist (often to better illustrate the context surrounding newsworthy facts or to provide background that gives the journalist a better understanding of the situation she is reporting on).
The confidentiality of anonymous source and off the record correspondence is crucial to journalists who expose corruption in our country.
The arguments posed by AmaBhungane are twofold. Firstly, they argue that the act does not provide sufficient safeguard in the process of interception and that it unreasonably limits, among others, the right to privacy. This includes the fact that those to be intercepted are not notified beforehand. Permission to intercept is applied for by a law enforcement officer without the cognisance of its target. A judge’s order grants or refuses this application.
AmaBunghane argues that it is impossible for the subject of interception to have the legality of an interception order challenged without knowing about it. Furthermore, the providers of electronic communication services are not allowed to tell their clients whose correspondence had been intercepted. Secondly, they argue that the act fails to regulate the interception of foreign signals and ‘bulk surveillance’ authorised in terms of the act. ‘Bulk surveillance’ describes the mass interception and collection of signal intelligence.
According to “SPOOKED: Surveillance of Journalists in SA,” a report compiled by the Right2Know Campaign in 2018, various South African journalists have been the target of RICA authorised state surveillance. This includes Jacques Pauw, Tom Nkosi, Sipho Masondo, Stephan Hofstatter, Mzilikazi wa Afrika, Athandiwe Saba, Peter Bruce, Rob Rose and the SABC 8.
Click here for AmaBungane’s court documents: https://www.dropbox.com/sh/w6y420sbgll850r/AADvfgsuv9Nda5Qoe9oJX5i6a?dl=0
Sources: SANEF press statement dated June 4, 2019. AmaBungane website, Right2Know.
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