Journalists launch challenge to constitutionality of Rica
Publish date: 21 April 2017
Issue Number: 4207
Diary: Legalbrief Today
The amaBhungane Centre for Investigative Journalism has launched a constitutional challenge to the Regulation of Interception of Communications and Provision of Communication-Related Information Act (Rica), notes Legalbrief. In a report on the Mail & Guardian Online site, the applicant and leading investigative journalist Sam Sole, himself a victim of state eavesdroppers, notes that Rica serves as the basis for the lawful interception of citizens’ communications, ‘but we contend that there are fundamental flaws in the law and that various sections are inconsistent with the Constitution’. He says: ‘We are going to court, starting with the High Court in Pretoria, to strengthen the protection of citizens – and journalists – against the potential abuse of this necessary but intrusive legislation.’ Sole says amaBhungane’s complaint falls into two categories: first, the areas where Rica regulates surveillance, but does so in an inadequate manner; and, second, where it fails to regulate certain monitoring activities.
Where Rica does regulate, there are five main constitutional flaws, Sole argues, listing them as:
One: A fundamental problem – the target of the interception order is never informed of the order, even after the period of interception has ended and even after any investigation has been concluded.
Two: This concerns the Act’s silence on the correct procedure to be followed when state officials are examining, copying, sharing, sorting through, using, destroying and/or storing the data obtained from the interceptions.
Three: This involves the mandatory data retention by telecommunications service providers. The Act requires that private companies must keep metadata – the who, when, where of communications, but not the content – for at least three years. But it does not provide for any oversight mechanisms to control access to, and ensure the protection of, that information.
Four: This concerns deficiencies in the regime for oversight by the retired judge nominated to rule on interception applications, including that there is no adversarial process under Rica when applications are considered.
Five: This is about the failure adequately to protect those targets of interception that have a legal duty to protect the confidentiality of communications and sources, such as lawyers and journalists.
Sole points out that amaBhungane is not arguing that the interception of communications is, in all circumstances, unconstitutional and impermissible, but because the interception and surveillance inevitably limit fundamental rights, such as privacy, it is essential that these procedures be subject to a series of stringent checks and balances. The founding papers were served on the Ministers of Justice, Police, State Security And Communications, as well as other interested parties, this week.