The Constitutional Court on Tuesday reserved judgment in the application of three HIV-positive women for leave to appeal against a judgment of the Johannesburg High Court.
The high court found last year that the women’s right to privacy, dignity and psychological integrity were not infringed by the publication of their names and HIV status in politician Patricia de Lille’s biography.
The court found that it would place an intolerable burden on journalists if they had to obtain informed consent from people before publishing their names and HIV status. The court also found that De Lille, journalist Charlene Smith, who wrote the book, and the publishers, Africa Books, did not act unlawfully when they published the women’s names.
The women took their case to the Supreme Court of Appeal, where the high court’s decision was upheld without reasons.
The women, from Atteridgeville in Pretoria, took part in clinical trials run in 1999 and 2000 by the University of Pretoria testing certain drugs aimed at easing the condition of HIV/Aids sufferers.
Concerns were expressed about participants becoming severely ill and dying and the help of De Lille, leader of the Independent Democrats, was called in.
The complaints resulted in two investigations during which the university was cleared from any wrongdoing.
The reports drawn up during the investigations contained their names and HIV status.
Afterwards Africa Books contacted Smith to write De Lille’s biography. The names and HIV status of the women were disclosed in the book.
In 2002 the women sent a letter to the publisher, requesting that their names be removed from the book. The publisher declined to do so and in December of that year the women sued De Lille, Smith and the publishers for an amount of R200 000 each for loss of dignity, privacy and psychological integrity and wellbeing.
De Lille and the other respondents offered the women a settlement of R35 000 each, but this was rejected and the case proceeded.
The women argued that they had never given express consent that their names and HIV status may be divulged. They also appealed to the High Court that the common law of privacy be developed to recognise a duty on those who publish confidential medical information, in particular a person’s HIV status, to get the person’s express informed consent.
The high court found that the disclosure of the women’s names in the book was not unlawful. It found that De Lille, Smith and the publisher had not been negligent in the publication and had done so without intent of unlawfulness.
The court further determined that the respondents had known at the time the initial interdict was sought that the women had given very limited consent and that they did not want their names and HIV status to be disclosed in the book.
With this in mind that court ordered that the publisher pay limited damages of R15 000 each to the women and also that their names be removed from the remaining books that had not yet been sold.
After the judgment was handed down the respondents informed the court that an offer to settle had been rejected by the women. The court then ordered that the publisher only pay the women’s legal fees up to 14 April last year, the date the settlement offer was made. The women were ordered to pay the legal costs of the respondents from 17 April last year, the date on which the offer was refused.
Subsequent to this the women appealed to the appeal court to broaden the base of liability and increase the damages. The application was dismissed without reasons.
The women then approached the Constitutional Court on the grounds that the high court did not protect their constitutional rights to dignity, privacy and psychological integrity and wellbeing.
They also contend that the high court overemphasised the respondents’ right to freedom of expression. They maintain that the common law of privacy should be broadened to include a duty of obtaining express informed consent when disclosing confidential medical information about a person, such as an HIV status. They also want the Constitutional Court to determine a more appropriate sum for damages.
De Lille, Smith and the publisher submitted that they were not negligent in publishing the women’s names and that their argument pertaining to the development of the common law is without merit. — Sapa