Case Summary and Outcome

The Constitutional Court of South Africa ruled that the disclosure of private and confidential medical information in a book without the full and informed consent from the individuals was an infringement of their right to privacy. Three women living with HIV who had participated in an HIV clinical drug trial and whose names had been published in an official academic report related to the trials learnt that their names and HIV status had been published in a biography about a politician without their consent. The women approached the High Court, arguing that this publication infringed their rights to privacy, dignity and psychological integrity. The High Court held that there had been no infringement of the rights and the Supreme Court of Appeal declined the hear their appeal. The Constitutional Court found that there was no need to develop the common law around privacy violations to include liability for negligence as the author of the book had acted with sufficient intention in publishing the women’s private facts as she had not taken the necessary steps to determine whether the women had consented to their identities being made public. The minority judgment stressed the need to balance the rights to privacy and to freedom of expression, and would have held that the common law should be developed, and that – given her position as a member of the media – the author had acted reasonably in relying on information provided in an official academic report.

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Facts

In March 2002, New Africa Books (Pty) Ltd published a biography of South African Member of Parliament, Patricia de Lille, written by Charlene Smith. The book included a chapter on de Lille’s work in campaigning for the rights of those living with HIV/AIDS. In 2001, the Strauss Report (an investigation on clinical trials conducted by the University of Pretoria) was shared with de Lille which included reference to three women living with HIV who had been on clinical drug trials – NM, SM and LH. Smith was given the Strauss Report, but neither she nor de Lille had been given the annexures related to the consent forms of the Report participants. The consent forms did not permit full public disclosure of the participant’s identity and the fact that they were living with HIV/AIDS, but only permitted limited disclosure for the purposes of the University’s investigation. Smith tried to obtain the annexures to the report from Professor Grove, but he did not return her calls and she then gave up trying to obtain the annexures and made attempts to meet NM, SM and LH but did not succeed in these attempts. However, Smith believed that there was nothing in the report, nor in the covering letter sent to de Lille, that suggested the report was confidential.

NM, SM and LH sued Smith, de Lille and New Africa Books for damages in the Johannesburg High Court on the grounds that the publication of their names and their HIV status infringed their rights to privacy, dignity, and psychological integrity.

The South African Constitution protects the right to privacy in section 14, which states: “Everyone has the right to privacy, which includes the right not to have — (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed.”

Section 16(1) of the Constitution protects the right to freedom of expression and states: “Everyone has the right to freedom of expression, which includes— (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research.”

The High Court dismissed the women’s application on May 13, 2005. NM, SM and LH then petitioned the Supreme Court of Appeal, which dismissed the application for leave to appeal without giving reasons.

NM, SM and LH approached the Constitutional Court. The Freedom of Expression Institute was admitted as amicus curiae.

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Decision Overview

 Judge Madala delivered the majority judgment of the Constitutional Court. Judge Sachs delivered a separate, concurring judgment, and Judge O’Regan and Chief Justice Langa each delivered a dissenting judgment. The central issue for the Court’s determination was “[w]hether the common law of privacy should be developed to impose liability on those who negligently publish confidential information” [para. 21]. The Court had to weigh the women’s right to privacy against Smith’s right to freedom of expression.

NM, SM and LH argued that the High Court had failed to “protect their rights to privacy, dignity and psychological integrity” [para. 27].

Smith argued that NM, SM and LH’s names had previously been disclosed in the Strauss Report and that the report was not marked confidential. Smith maintained that the women’s HIV status was already in the public domain when the book was published as the women had participated in a meeting about their grievances relating to their involvement in the clinical trials and that they would have known that these grievances were likely to be reported and to reach the public because they had been made in the presence of journalists. Smith also argued that making the negligent disclosure of private facts actionable would “frustrate the right to freedom of expression” by imposing an additional burden on the media [para. 67].

The Freedom of Expression Institute made the same argument as Smith and argued that it was unnecessary and undesirable to develop the common law to include negligent disclosure in the actio iniuriarum as that would have a “chilling effect” on the exercise of freedom of expression in South Africa [para. 67].

The Court discussed the nature of the right to privacy and, with reference to the case of Bernstein v Bester, stated that “[p]rivacy encompasses the right of a person to live his or her life as he or she pleases” [para. 33]. It added that private facts are those which “cause mental distress and injury” if they are disclosed [para. 34]. The Court emphasized that medical information is particularly sensitive and involves questions of “bodily and psychological integrity and personal autonomy” [para. 40]. It stressed the need to protect confidential information, and that – particularly in South Africa and the stigma around HIV – it is particularly important to respect the privacy and confidentiality of individual’s HIV status. The Court dismissed the idea that access to others’ medical information is permitted once it has been disclosed by someone involved in the individual’s medical care on the grounds that an individual always has the right to control the disclosure of information about themselves. It added that there must be a “pressing social need” if an individual’s privacy is to be violated [para. 45].

The Court rejected the High Court’s finding that Smith was not liable for damages, noting that Smith had not made a sufficient effort to determine whether the women had consented to disclosure of their HIV status or to anonymize their identity. Accordingly, the Court held that Smith’s publication of their names and HIV status “constituted a wrongful publication of a private fact and so the applicants’ right to privacy was breached” [para. 47].

The Court noted that the actio iniuriarum – the common law legal action that is the basis for both defamation and privacy claims – protects individual’s rights to privacy and dignity, and held that the disclosure of the women’s HIV status infringed their dignity and psychological integrity. The Court set out the elements of an actio iniuriarum as the wrongful and intentional impairment of privacy and noted that this means that negligence is therefore not sufficient for liability. The Court refused to develop the common law of the actio iniuriarum to include negligence on the grounds that it was not necessary in this case. The Court held that Smith had not taken the necessary steps to ascertain whether the women had given consent for their identity and HIV status to be disclosed and that, in fact, was “certainly aware that the [women] had not given their consent or at least foresaw the possibility that the consent had not been given to the disclosure” [para. 64]. It noted that as Smith was a “seasoned campaigner” in HIV activism she would have known that publication without consent was wrongful and would infringe the women’s privacy rights. The Court found that Smith had not rebutted the presumption that she had acted with intention and so had acted with intention, not merely negligence. Accordingly, the grounds of the actio iniuriarum had been met.

The Court also examined Smith and the Freedom of Expression Institute’s argument that right to freedom of expression would be threatened if negligent disclosure of private facts became actionable. However, as the Court had held that Smith’s conduct was intentional and not negligent, and that the common law therefore had not been developed, the question of a new infringement of the right to freedom of expression did not emerge.

In assessing the damages, the Court noted that “the greater the violation of the privacy, the greater the need to protect the applicants and the greater the award of damages” [para. 77]. The Court awarded NM, SM and LH R35 000 (approximately US$2 357 in 2021) each in damages.

O’Regan’s dissenting judgment focused on whether Smith had acted with intention in publishing NM, SM and LH’s names and HIV status. The Judge stressed the importance of the protection of privacy but that, as the Constitution protects freedom of expression as well as privacy, the rights need to be balanced. She gave two reasons for the protection of the right to privacy: its links to the “conception of what it means to be a human being” and so to choose what personal information of ours is released into the public space [para. 129]; and as “a necessary part of a democratic society and as a constraint on the power of the state” [para. 133]. O’Regan emphasized that medical information is personal and protected by the right to privacy, but noted that HIV must be treated the same as any other life-threatening disease for the purposes of privacy and the stigma associated with HIV in South Africa does not make the disclosure of HIV statuses any different from other disclosures of personal medical information.

In balancing the rights to privacy and freedom of expression, O’Regan would have held that Smith published the women’s identities and HIV status without their consent but commented that “the right to privacy might suggest that certain facts should not be published while at the same time the right to freedom of expression might suggest that those same facts should be able to be published” [para. 144]. She commented on the importance of the right to freedom of expression, and the role it plays in allowing individuals to form their own opinions on topics which thus “enhances human dignity and autonomy” [para. 145]. The Judge commented that any development of the law around the right to privacy – specifically the actio iniuriarum – must be done in a way that respects both the rights to privacy and to freedom of expression. O’Regan placed particular emphasis on the evidence of South African journalist, Anton Harber, who had identified the four key principles for journalism as “the obligation to tell the truth; the obligation to remain independent; the obligation to minimise harm; and the accountability of journalists to explain and defend their work” [para. 149]. The Judge accepted that codes of media ethics can be instructive in identifying the boundaries of privacy and freedom of expression.

O’Regan examined whether Smith had the intention to injure the women, and noted that Smith had received the report with the women’s names without any indication that their identities were to be kept confidential. O’Regan disagreed with the majority on whether Smith had taken sufficient steps to ascertain whether the women had given consent, and would have held that Smith was justified in assuming that consent to disclosure was present because the women’s names were published in a reputable report with no clear indication that their identities should be confidential, that the report had been sent to at least some journalists and that de Lille had not expressly been told to maintain the women’s confidentiality. The Judge would have held that Smith had not acted intentionally in publishing information about the women and their HIV status and that therefore the conditions for the actio iniuriarum had not been met.

O’Regan then examined whether the common law actio iniuriarum for infringements of privacy should be developed to include the negligent disclosure of a private fact. She noted that the common law of defamation had been developed by South African courts, and referred to the cases of Pakendorf v. De Flamingh, National Media Ltd v. Bogoshi, Khumalo v. Holomisa and Mthembi-Mahanyele v. Mail and Guardian. The Supreme Court of Appeal had developed the common law in Bogoshi by adding the requirement that the media could avoid liability for defamation if it could show that it neither acted intentionally or negligently in publishing defamatory facts. O’Regan would have held that the Bogoshi rule should be extended to cases in which the media has infringed the right to privacy. She stressed that the reason Bogoshi distinguished between media and other defendants in defamation cases was because of the “scale of damage to an individual that can be caused by such widespread publication” and that the media therefore has obligations as well as rights [para. 177]. The obligations imposed on the media by Bogoshi are that it acts reasonably and not negligently, and that, applied to the concept of privacy this would require that the media “act with due care and respect for the right to privacy, prior to publishing material that infringes that right” [para. 178]. Accordingly, O’Regan would have developed the common law to require that media demonstrate that “the publication is reasonable in the circumstances, in which case they will rebut wrongfulness, or that they have not acted negligently in the circumstances in which instance they will need to rebut the requirement of intention” [para. 179]. O’Regan would have held that Smith and New Africa Books – but not de Lille – should be considered part of the media and so they would have been obliged to have acted reasonably.

In determining whether Smith acted reasonably, O’Regan noted that she relied on information published in a reputable academic report and stated that “journalists must be entitled to publish information provided to them by reliable sources without rechecking in each case whether the publication was lawful unless there is some material basis upon which to conclude that there is a risk that the original publication was not lawful” [para. 187]. Any actions for the publication of incorrect information could only be brought against the original publisher and not against subsequent publishers of the information.

Accordingly, O’Regan would have held that it was appropriate to develop the common law to require that the media act reasonably in publishing private facts but that, in the present case, Smith did act reasonably and so should not be held liable for publishing the identities and HIV status of NM, SM and LH.

Chief Justice Langa disagreed with the majority that Smith had failed to rebut the presumption of intention, and would have held that the facts did not disclose that Smith, de Lille and New Africa Books “subjectively foresaw the possibility of their action causing harm” [para. 93]. The Chief Justice described Smith and New Africa Books as media defendants and agreed with Judge O’Regan that the media should be held to a higher standard than ordinary individuals to “ensure that the vital right of freedom of expression is not used in a manner that improperly infringes on other constitutional rights” [para. 94].  He also referred to Harber’s evidence that journalists cannot disclose an individual’s HIV status without the individual’s informed consent, and stressed that the fact that a document on which the media relies may be an official report does not entitle the media to assume it can automatically publish any information within that report without further investigation. The Chief Justice would have held that a reasonable journalist “would have foreseen the possibility that there was not consent” and would have taken steps to avoid the harm that would occur if the identities of the women were published [para. 111].

Judge Sachs also discussed the development of the common law in Bogoshi and noted that the introduction of the reasonableness requirement was to “pre-empt the undue chilling effect of huge potential claims for damages following on honest error” as it introduced a defence for a media outlet to demonstrate that it had taken reasonable steps to verify the truth of an allegation [para. 203]. Judge Sachs commented that there was nothing to suggest that Smith had not been genuine in her incorrect belief that the women had made their HIV status public, but he stressed that “given the extreme sensitivity of the information involved, she should have left no stone unturned in her pursuit of verification” [para. 205]. Judge Sachs would have held that Smith’s conduct was not reasonable.

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