Case Summary and Outcome

A High Court in South Africa refused an application to interdict the broadcasting of footage obtained by a media company doorstepping a businessman accused of financial misconduct. The businessman argued that he had been ambushed by an investigative journalism television program when he attended what he thought was a business meeting, and that the footage they obtained of him refusing to speak to them was an infringement of his privacy. The Court characterized the case as one of prior restraint of publication and found that the strict conditions for such an action were not met. It stressed that the footage was obtained in public and that the allegations of misconduct were in the public interest, and that when balancing the rights to freedom of expression and privacy in cases of prior restraint courts these rights are not weighed evenly because of the extreme impact a prior restraint has on press freedom.

Facts

On October 24, 2024, Gregory Els, a South African businessman, was contacted by a potential new client wanting to set up a business meeting. Els’s company, Praxley, provides clients with corporate advisory services. Els agreed to the meeting on October 29 at a coffee shop in a shopping center in Johannesburg. When Els arrived, he realized the meeting had been a ruse and he was confronted by a television crew and a well-known South African investigative journalist Devi Govender. Govender is the host of the “Devi Show”, described as “an investigative current affairs programme dealing with matters of public interest”, and broadcast on two channels, ENCA and E.tv. [para. 2] At the “meeting”, with the television cameras on, Govender called Els by name and asked him “why he had not refunded a certain Dr Reza his money” and followed him to his car. [para. 6]

Later that day, Els received an email from the Devi Show with a list of fourteen questions dealing with allegations of his “treatment of certain past clients of Praxley”. He was given a week to respond to the questions, either in writing or through a camera interview.

Els’s attorney responded to the Devi Show, requesting that it not broadcast any footage it had obtained at the shopping center on the grounds that it was a violation of the Protection of Personal Information Act (POPIA). Els responded in writing to some of the questions posed to him and E.tv refused to commit to not showing any of the footage. On November 13, E.tv told Els that they would go be airing the Devi Show that Sunday, November 17, 2024, and it would include the shopping center footage.

On November 14, Els approached the High Court in Johannesburg, seeking an urgent interdict to prevent E.tv from broadcasting that footage.

Decision Overview

Judge Manoim delivered the judgment of the Court. The central issue for the Court’s determination was whether Els’s right to privacy justified the Court issuing a prior restraint of publication, a significant limitation of the right to freedom of expression.

Els argued that his general right to privacy and his rights under POPIA would be infringed if the shopping center footage was aired. He submitted that he had not consented to being filmed and that he had been “ambushed” as he had not been told beforehand of the filming. [para. 17] He argued that he had been “lured to the coffee shop by deception” and that he was not a public figure as he was a private businessman with no social media presence. [para. 17] Els argued that the shopping center footage was not protected by the principle against prior restraint because it “contains no information other than him being confronted and walking away to his car” and that as he had not spoken at all it could not constitute an interview. [para. 17] He submitted that, although he was seeking a prior restraint of publication – an order courts are reluctant to issue – the existing jurisprudence was not directly relevant because it concerned the risk of defamation not a violation of privacy; he submitted that the need to protect privacy is greater than to prevent defamation. Els maintained that airing the shopping center footage would be “performative not informative” [para. 32] Els did not challenge the right of the broadcasters to address the allegations of financial misconduct against him or his company.

E.tv argued that it should be entitled to show the shopping center footage as Els was a public figure and that the matter was in the public interest, specifically that it related to the “administration of justice and public confidence in the rule of law”. [para. 9] It submitted that “[b]roadcasting allegations against persons such as Els would empower other members of the public to come forward with their own experiences”. [para. 9] E.tv argued that Els’s “reliance on claims for privacy to interdict the broadcast is a fig leaf for what amounts to prior restraint”. [para. 28]

The Court acknowledged that both parties accepted that the allegations of Els and Praxley’s financial misconduct would be aired “whatever sting they entail be it defamatory or not”. [para. 14]

POPIA regulates the processing of personal information but the Court noted that even if it accepted that E.tv’s broadcast of the shopping center footage constituted processing under POPIA, “it is not clear what personal information Els relies on”. [para. 18] The Court accepted that the footage revealed his name but stressed that he would have been identified in the aspects of the broadcast that Els was not challenging (that is, the reporting on the allegations against him and his company). It added that as his photograph was on the company website “his appearance” was not at issue and that “[a]t best for him the processing of personal information is somehow the difference between his static image and the moving image of him as it appears on the footage as well as his make of car.” [para. 18] The Court held that this was not “sufficient to distinguish between what may appear in the impugned footage and what might appear in the non-impugned footage”. [para. 19]

The Court referred to section 7 of POPIA which creates an exclusion for journalism and states that POPIA “does not apply to the processing of personal information solely for the purposes of journalistic, literary or artistic expression to the extent that such an exclusion is necessary to reconcile, as a matter of public interest, the right to privacy or the right to freedom of expression”. The Court characterized the balancing of rights under section 7 as similar to that for an ordinary claim for a privacy right; “what a court needs to balance is the claim of the subject asserting the right of privacy with the right of the publisher to freedom of expression”. [para. 22]

Undertaking the balancing of the rights to privacy and freedom of expression, the Court emphasized that the rights are not weighed evenly when the question involves a prior restraint on publication. It referred to the Midi Television v. Director of Public Prosecutions (Western Cape) case to explain that the “reason courts so assiduously protect freedom of expression from prior restraint … is not for the benefit of the media alone” because a violation of the freedom of the press affects the rights of all citizens. [para. 24] It cited Print Media South Africa v Minister of Home Affairs in emphasizing that courts should impose prior restraints “in narrow circumstances only”. [para. 26]

The Court agreed with E.tv’s arguments on prior restraint, finding that ”the same considerations that may apply to the publication of allegedly defamatory material should apply to an alleged invasion of privacy”. [para. 29] It held that the caution from the Print Media case that a court should be wary of banning footage before it has “seen the light of day” applied in this case. [para. 29]

In considering the right to privacy, the Court quoted the leading South African case, Bernstein v. Bester, which had accepted that although privacy is in the “personal realm”, once a person “moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly”. [para. 30] The Court compared the relative nature of privacy, changing with distance from the personal realm, with the right to freedom of expression, and quoted Print Media which had held that “to the extent that laws encroach upon press freedom, so too do they deal a comparable blow to the public’s right to a healthy, unimpeded media”. [para. 31]

The Court described as “interesting” Els’s argument that any information aired in the shopping center footage would be “performative not informative” and that the “likely content of the footage does not justify any claim for protection”. [para. 32] It accepted that the broadcaster “wants to secure the dramatic effect of its footage”, especially given the nature of the Devi Show which is centered on the door stopping technique and “thrives on Devi being seen on camera confronting an alleged exploiter of the innocent and holding him to account on camera”. [para. 33] The Court accepted that there were “elements of the performative” in the shopping centre footage but that it was also informative and that the two are not “mutually exclusive” when assessing the question of a violation of privacy. [para. 33] It added that just because Els did not speak in the shopping center footage “does not detract from its claim to expression” and described his walking away as a form of “non-verbal communication” as “Els appears to be unable or unwilling to refute his accusers”. [para. 34] Accordingly, the Court held that the footage did not “dilute any claim for freedom of expression” for both E.tv and the viewers. [para. 34]

The Court dismissed Els’s argument that he was not a public figure because he had no social media presence, noting that he did have a presence on the internet and that there were accusations made against him online. It added that as the allegations involve “substantial sums of money” they were “sufficiently grave to warrant a claim of public interest”. [para. 37] It added that Els offers services to the public and so members of the public may be at risk if the “allegations are correct or even partially correct”. [para. 37] The Court acknowledged that the broadcast was based on at least six sources and that the filming was done in a public place. It added – with reference to Tshabalala-Msimang v. Makhanya where a journalist had obtained information unlawfully but had not been interdicted from using that information – that the practice of luring Els by deception was not sufficient to justify the interdict.

Accordingly, by using the approach established in Bernstein, the Court accepted that Els’s affairs were in the public realm; “his claims for privacy have receded far from the realm of the private affairs of someone in their private home”. [para. 37]

The Court held that Els had failed to demonstrate that he had a clear right and that he had no alternative remedy (as Els could sue for damages for invasion of privacy) and so had not made the case for the interdict he sought. The Court dismissed his application.

The Court accepted that Els was concerned about the identification of his car from the footage and acknowledged that E.tv had committed to not reveal the car’s licence plate. It ordered that E.tv obscure the licence plate and any other distinguishing features.