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Access to Information and Protection of Privacy Amendment Bill, 2002
[Bill gazetted as H.B. 9, 2002 in Government Gazette Extraordinary of 11th October, 2002]
October 11, 2002

To amend the Access to Information and Protection of Privacy Act [Chapter 10:27] and to provide for matters connected therewith or incidental thereto.

ENACTED by the President and the Parliament of Zimbabwe.

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Memorandum

The purpose of this Bill is to amend the Access to Information and Protection of Privacy Act, 2002, ("the principal Act") with a view to improving it and correcting certain anomalies and errors that have come to the attention of the Ministry since the Act was promulgated.

The individual clauses of the Bill are explained more fully below.

Clause 1
This clause sets out the Bill’s short title.

Clause 2
This clause seeks to amend the interpretation section of the principal Act (section 2 (1)) in several respects. Firstly, it will incorporate certain definitions that were originally applicable only to Part XI of the principal Act, but which have been found to be applicable to the whole Act. Secondly, it will replace definitions of certain important terms (for example, "mass media service") by definitions which are expected to be easier to apply and comprehend. Thirdly, it includes a new definition of "legal representative" for the purposes of section 86 of the principal Act and any regulations made under the principal Act.

Clause 3
This clause seeks to replace 22 of the principal Act so that issues of "personal safety" are not mixed up with issues of "national security" (these last are adequately dealt with under section 17 of the principal Act).

Clause 4
This clause seeks to amend section 25 of the principal Act in several respects. Firstly, it replaces subsection (2) (f) in order to make it clear that personal information supplied in confidence is protected from disclosure whether it is supplied by and about oneself or about a third party. Secondly, it removes the blanket restriction in subsection (3) on the disclosure of a person’s "racial and ethnic origin" as it may hinder bodies like the Reserve Bank from gathering information about bank-lending patterns, or the progress of indigenisation of the economy. Thirdly, it provides more precisely under what circumstances the disclosure of the details of and reasons for the grant of a public benefit will not be considered to be an unreasonable invasion of a third party’s privacy.

Clause 5
This clause seeks to amend section 28 of the principal Act ("Information to be disclosed if in the public interest") by combining in one provision the references to public order and public security that are presently separated or duplicated in two provisions.

Clause 6
This clause seeks to substitute section 35 of the principal Act by framing the offence of "deliberately falsifying personal information" in a less ambiguous way, and by replacing the reference to a specific maximum fine by a "level" of a fine in accordance with the Criminal Penalties Amendment Act, 2001.

Clause 7
This clause seeks to remove words in subclause (2) that require the Minister to appoint at least three members of the Media and Information Commission from persons nominated by an association of journalists and an association of media houses.

Clause 8
This clause seeks to insert in Part IX headed "Further Powers of Commission" sections providing for the general power of the Mass Media Commission to hold inquiries and issue orders. Presently, these powers are only specifically provided for in the context of requests for reviews of decisions by heads of public bodies to deny access to information (see Part X, "Reviews by the Commission"). With respect to the power of the Commission to hold inquiries, it is provided that the Commission may dispense with the formality of an inquiry where it considers that no substantial disputes of law or fact are required to be determined.

Clause 9
Following upon the amendment sought under clause 8, this clause seeks to repeal sections 56, 58 and 59 of the principal Act, whose substance will be contained in the new sections inserted by clause 8. It also seeks to repeal sections 60 and 61, because they are of general application and do not belong to Part X but to the general Part at the end of the principal Act. Finally, section 62 is sought to be repealed because all the definitions are either to be transferred to the interpretation section of the principal Act by the Bill (see the commentary on clause 2 above), or refer to terms that are not used elsewhere in the principal Act.

Clause 10
This clause seeks to substitute section 64 of the principal Act by a new provision which frames the offence of "Abuse of freedom of expression" in a manner that avoids any apparent conflict with the constitutional freedom of expression, and by replacing the reference to a specific maximum fine by a "level" of a fine in accordance with the Criminal Penalties Amendment Act, 2001.

Clause 11
Subsection (3) of section 65 of the principal Act permits existing foreign mass media owners to continue owning local mass media services to the extent of their ownership interest held on the 31st January, 2002. The effect of the amendment sought by subclause (1) is to withdraw this permission from owners of mass media services that publish newspapers for sale for mass circulation. Subclause (2) affords persons who are disqualified from owning local mass media services three months within which to dispose of their ownership interest to persons who are so qualified.

Clause 12
The principal amendment sought by this clause is to include a specific reference to the renewal of registration of a mass media service in section 66 of the principal Act.

Clauses 13
This clause seems to amend section 68 of the principal Act with a view to specifying more clearly who is required to be registered under the principal Act. Some mass media services are exempted from registration under the principal Act (for example, broadcasting services, which are regulated by another statute). Also, certain activities which are similar to those undertaken by a mass media service (in particular, the production of "in-house" publications) are not considered to be mass media services for the purposes of the principal Act and accordingly are exempted from registration, unless it is seen that they circulate their products to the general public, in which event the Commission may require the person or enterprise producing them to be registered.

Clause 14
This clause proposes to amend section 69 of the principal Act by providing for a right of appeal to the Administrative Court from a decision by the Mass Media Commission to refuse to register a mass media service.

Clause 15
This clause proposes to repeal section 73 of the principal Act. The section is not necessary because its provisions (that registered entities may operate from the date of registration, and the freedom of such entities to enter into lawful contracts) ordinarily apply to any body corporate or undertaking that is registered (including companies).

Clause 16
The principal amendment sought by this clause is to include a specific reference to the duration and renewal of registration of a news agency in section 74 of the principal Act.

Clause 17
This clause seeks to limit the existing broad requirement of free publication by mass media services of court or Commission decisions affecting them. Not all such decisions are of a nature that require publication (for instance, a decision on an application for the extension of a time-limit, or a condonation for non-compliance with some procedural formality) Accordingly, publication will be limited to such occasions, and be done in such manner, as the Commission may require.

Clause 18
This clause seeks to amend section 78 by supplying a definition of "journalistic privilege" and clarifying one aspect of this privilege, namely, the journalist’s rights in relation to any editing of the journalist’s work that he or she considers to be distortive.

Clause 19
This clause replaces the phrase "accredited for a limited period" in relation to the accreditation of foreign journalists by a more definite expression.

Clause 20
This clause seeks to substitute section 80 of the principal Act. The new provision proposes to frame the offence of "Abuse of journalistic privilege" in a manner that avoids any apparent conflict with the constitutional freedom of expression, and by replacing the reference to a specific maximum fine by a "level" of a fine in accordance with the Criminal Penalties Amendment Act, 2001.

Clause 21
This clause seeks to repeal section 81 of the principal Act. The extension of journalistic privilege to the non-journalists mentioned in section 81 of the principal Act is potentially too broad to permit of proper enforcement, especially as such persons may be subject to criminal sanctions without having the same privileges as journalists.

Clause 22
This clause proposes to amend section 87 of the principal Act by providing for a right of appeal to the Commission about the manner in which a mass media service makes a correction of information injurious to a person’s reputation, honour or dignity.

Clause 23
This clause proposes to amend section 89 of the principal Act by relating the "right to reply" to any "offending information" instead of simply to an "offending story", and by specifying with greater precision when the reply is to be published.

Clause 24
This clause seeks to amend section 90 of the principal Act by including a specific reference to the renewal of permission to set up or operate a representative office of a foreign mass media service.

Clause 25
The purpose of this amendment is explained in the commentary under clause 9 in connection with the repeal of sections 60 and 61 of the principal Act.

Clause 26
The amendment sought by this clause will remove an inconsistency between subsections (1) and (2) of section 93 of the principal Act (subsection (1) presently requires both journalists and mass media services to be registered or accredited within three months of the commencement of the principal Act, whereas subsection (2) permits journalists who were accredited before the commencement of the principal Act to continue to be accredited to the end of 2002).

Clause 27 and Schedule
This clause and Schedule effect various small amendments to the principal Act.

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