Although South African media is enjoying unprecedented levels of freedom from censorship granted it in terms of section 16 of the constitution (covering the right to freedom of expression, including freedom of the press and other media), this right is not unlimited and must be balanced against seemingly contradictory rights, such as the individual’s right to privacy.
Section 14 of the constitution 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; (d) the privacy of their communications infringed.”
In a networked world that operates according to the dissemination of information, issues of privacy raise many concerns for journalists. Jurisdiction, the accuracy and legitimacy of photographical (digital) imagery, as well as the source and ownership of content all need to be carefully considered in the context of section 14.
Privacy falls under the area of South African law that covers unlawful and intentional damage to one’s personality. In terms of our common law, the right to privacy includes the protection of the contents of private correspondence, confidential information, certain information concerning family matters, issues of personal health, and issues of lifestyle such as sexual orientation.
Our courts have typically employed the ‘boni mores’ (values of society) test to establish whether an invasion of privacy has occurred. This test looks at whether the reasonable person would consider the act in question to be an invasion of another’s rights. But our constitutional framework extends this idea to private information in the broadest sense which amounts to information that is private in nature, or information that the individual can reasonably expect to be kept private.
As each case will be adjudicated on an individual basis, it is worth bearing the following in mind:public interest in the information and/or consent to publication can be argued as a defence to a claim for invasion of privacy;the public’s interest in government officials, for instance, will be higher than that of the average citizen and accordingly different standards may apply;one needs to be especially careful of reports involving children and cases being heard ‘in camera’;privacy rights are not only applicable to the individual in his/her personal space but are retained in social capacities such as in offices, cars and when talking on mobile telephones; privacy laws apply to both natural and juristic persons e.g. companies and CCs (although the standard for a juristic person will differ to that of the average man).
Added to the above, it is important to recognise the distinction between the role of truth in a defamation case and a privacy case. While ‘truth’ offers a solid defence against the former charge, in privacy the element of truth may in fact work against the publisher, as it verifies the private nature of the information. Further, ownership of copyright in the material is probably not a defence. For instance, while a company may have the prerequisite contracts allowing them to access the private emails of their employees, this will not detract from the employees’ rights to privacy as regards the content of those emails.
No doubt the arguments in support of press freedoms and section 16 will offer a balance to many of the issues raised above, but it is important to realise that with the new freedoms come limitations. Ultimately, it is best to err on the side of caution when dealing with potentially private information.
Greg Hamburger is a candidate attorney with Rosin Wright Rosengarten, a firm of attorneys specialising in entertainment and media law based in Johannesburg.