Wednesday, December 03, 2008

South African Supreme Court of Appeal upholds constitutionality of criminal libel

In S. v. Hoho, the Supreme Court of Appeal held that the offence had not fallen into disuse and continued to serve a purpose in democratic society. Writing for the Court, Streicher ends by quoting with firm approval from the Privy Council's holding in Worme:

"Of course, some democratic societies get along without it. But that simply shows that its inclusion is not the hallmark of the criminal law of all such societies. In fact criminal libel, in one form or another, is to be found in the law of many democratic societies, such as England, Canada and Australia. It can accordingly be regarded as a justifiable part of the law of the democratic society..."

Council of Europe Convention on Access to Official Documents

The Council of Europe has adopted a Convention on Access to Official Documents. Cause to celebrate for the worldwide FoI movement, you'd think, but no. The Convention has been criticised for having been developed in secret, with little or no public access to the text in crucial final stages of development. The text of the Convention is also severely lacking, according to NGOs as well as to the Council of Europe's own Parliamentary Assembly who called for a redraft to broaden the scope of authorities covered, impose time limits on the handling of requests, and strengthen the nature of the review processes available to people whose access requests have been denied.

On the bright side, this is still the first international treaty to establish an unequivocal right to access documents held by public bodies, subject to fairly limited exceptions. Exceptions must be precisely laid down in law, be necessary in a democratic society and must be proportionate to the protection of
  1. national security, defence and international relations;
  2. public safety;
  3. the prevention, investigation and prosecution of criminal activities;
  4. disciplinary investigations;
  5. inspection, control and supervision by public authorities;
  6. privacy and other legitimate private interests;
  7. commercial and other economic interests;
  8. the economic, monetary and exchange rate policies of the state;
  9. the equality of parties in court proceedings and the effective administration of Justice;
  10. environment; or
  11. the deliberations within or between public authorities concerning the examination of a matter.
This is as strong a statement of the right to access as you'll get anywhere(although there's an unfortunate and very silly add-on exception for States with royal families who they feel a need to exempt from the right of access altogether) and the Convention is of value for that reason alone. Time will tell how it will be implemented and whether States will focus on its strengths rather its weaknesses - but the NGO community must not neglect the Convention's strong points.