A biography of politician Patricia de Lille had invaded the right to privacy of three women whose names and HIV-positive status were disclosed in it, the Constitutional Court ruled on Wednesday.
In a full sitting of judges, the three women were each awarded R35 000 in damages, from De Lille, author Charlene Smith and publishers New Africa Books.
”Smith and De Lille were liable for damages together with the publishers due to their infringement of the applicants’ rights to privacy and dignity from the moment of the publication of the book,” the court said. ”The use of pseudonyms instead of the applicants’ real names would not have rendered the book any less authentic and nowhere could it be shown that the public interest demanded otherwise.”
The three respondents were also ordered to pay costs.
In its judgement the Constitutional Court set aside an earlier Johannesburg High Court decision, which held that disclosing the names was not unlawful, and that Smith and De Lille were not negligent and did not act with the intent to reveal private medical facts.
Only the publisher was held liable by the high court, and ordered to pay the three women R15 000 in damages each, and to delete any references to the women in the unsold copies of the biography.
Rights breached
The women claimed that their right to privacy, dignity, psychological integrity and mental and intellectual well-being were breached by the disclosure.
One complainant said her relationship with her boyfriend, who had not known about her HIV status, had deteriorated after his friends had read the book and he subsequently burned down her home.
In handing down the judgement, Justice Tholie Madlala said a person’s HIV status, particularly in South Africa, deserves ”protection against indiscriminate disclosure” due to the stigma surrounding the virus.
The three women participated in a medical trial after being diagnosed with HIV. A report about the trial was handed to Smith by De Lille to indicate the work the latter had done in the field. Smith used the report, disclosing the names of the women in a chapter of the book.
She stated that the report was already in the public domain.
”The assumption that others are allowed access to private medical information once it has left the hands of authorised physicians … is fundamentally flawed. It fails to take into account an individual’s desire to control information about him or herself and to keep it confidential from others,” Madlala said.
”Indeed there must be a pressing social need for that expectation [for privacy] to be violated and the person’s right to privacy interfered with. There was no such compelling public interest in this case.”
Madlala said the women’s right to dignity had also been infringed as a result of the disclosure.
”HIV is a disease like any other. However, the social construction and stigma associated with the disease make fear, ignorance and discrimination the key pillars that continue to hinder progress in its prevention and treatment,” he said. ”Living with HIV/Aids should not be viewed as a violation of one’s dignity.
”It is, however, an affront to the infected person’s dignity for another person to disclose details about that other person’s HIV status or any other private medical information without his or her consent.”
No intention to hurt
De Lille on Wednesday told the South African Broadcasting Corporation that it had not been her intention to hurt anyone.
”I have always said to them from the beginning, my intention was never to hurt anybody. I’m an Aids activist of international standing and would never hurt people maliciously, and certainly I will be speaking to them,” she said.
The Aids Law Project, representing the women, lauded the judgement. Attorney Mark Heywood said: ”We are over the moon … The judgement confirms that people with HIV and other medical conditions have a right to privacy, it confirms that their [the women] dignity was violated … we are gratified with it,” he said.
He believed the judgement had set a precedent. ”It was particularly important because it was brought by the poorest of the poor … it indicates that the poorest of the poor should trust the Constitution and legal processes,” Heywood said.
The three women were ”very happy” about the judgement and felt ”vindicated”, he said.
Justice Kate O’Regan dissented with the judgement. She held that the disclosure of the applicant’s names or HIV status was not negligent or intentional and that to expect the respondents to ensure that the women consented to the original publication of their names imposed a significant burden on freedom of expression.
Justice Albie Sachs concurred with the judgement. He felt that Smith should have left no stone unturned in verifying that the applicants had placed their status in the public domain.
Chief Justice Pius Langa concurred with the majority judgement in part, but said the three respondents should have borne all the costs as opposed to costs incurred from the point the matter was brought before the Constitutional Court. — Sapa