ARTICLE 19 GLOBAL CAMPAIGN FOR FREE EXPRESSION Article 16 imposes criminal liability on any person who discloses, without a legitimate reason, any protected information which he obtained through his position in a Department. He shall be sentenced to hard labor for a minimum of ten years. If he discloses the information to a foreign State, the sentence is hard labor for life. If it was an enemy foreign State, he shall be sentenced to death. Analysis The criminal sanctions for attempting to or accessing protected information are excessively severe. Such harsh sentences in and of themselves constitute a violation of the right to freedom of expression.32 As noted in Principle 24 of the Johannesburg Principles, “[a] person, media outlet, political or other organization may not be subject to such sanctions, restraints or penalties for a security-related crime involving freedom of expression or information that are disproportionate to the seriousness of the actual crime.” Article 14 is particularly problematic in this regard. These penalties exert a serious chilling effect on the discovery of information in which there is a strong public interest in being disclosed. The severity of the sanctions is intensified by the strict liability nature of the offences, with the exception of Article 16(a) which allows a limited and subjective qualification of holding a “legitimate reason”. Strict liability is not compatible with the right to access information or the legitimate protection of whistleblowers. These provisions have a wide-ranging application, with a particularly harsh impact on those who seek to disclose information in the public interest. The provisions should reflect this, factoring in why the information may have been sought and what its intended use was. The provisions should be narrowly drafted offences which clearly link harm to national security to the proscribed conduct and which impose sanctions which are proportionate to the crime in the circumstances. At a minimum, there should be an appropriate degree of discretion available to sentencing for an offence under Articles 14 to 16. It is also important to note that the legitimacy and scope of these provisions hangs on the definition of “protected secrets and document”, as do a number of provisions in the Law. We reiterate the importance of ensuring that this definition is drafted appropriately narrowly to reflect the purpose of protecting national security within the acceptable boundaries relating to harm and public interest disclosure. Recommendations: • The Law should be amended to provide for proportionate sentences for the crimes. • The Law should clearly and specifically describe the offences. 3.8 Lack of sanction for wilful misclassification of information The Law fails to provide a sanction for the willful misclassification of information. The Law should provide sanctions for the intentional misclassification of information for purposes of breach of the law, corruption or to limit the public’s access to information. In order to effectively prohibit the misclassification of information, the Law must provide such sanctions. 32 See, for example, Tolstoy Miloslavsky v. United Kingdom, 13 July 1995, Application No. 18139/91 (European Court of Human Rights). Memorandum on Jordan’s Protection of State Secrets and Documents Provisional Law No. (50) for the Year 1971ARTICLE 19, London, 2005 – Index Number: LAW/2005/1205 - 16 -