There were guffaws around the land when Julius Malema tried to convince Judge Colin Lamont of the South Gauteng High Court that he was not a public figure and that his privacy rights should therefore trump the free-speech rights and constitutional duties of City Press. Just days before, the ANC Youth League president had been arguing that he was the most popular leader in South Africa.
As absurd as Malema’s averments sound, however, crucial questions of law and media ethics are in play here.
There is no doubt that members of the general public are entitled to their privacy and the media has no prima facie right to pry into their lives without good cause. The phone-hacking scandal in the United Kingdom is a prime example of what can go wrong when the appropriate balance is not struck. On the other hand, the basic constitutional duty of the press to report without fear or favour and to expose wrongdoing — especially in high places — requires that, from time to time, privacy be breached, sometimes profoundly.
As Lamont put it: “The public is entitled to full disclosure by persons who stand in a public position who are high-profile personalities and who invite comment about themselves.”
The legal concept of a public figure, which is increasingly well developed internationally, is one important guide, albeit not the only one, for making decisions about when it will be appropriate to seek out and publish information that might ordinarily be considered private.
Enhanced data-protection laws such as the Protection of Personal Information Bill currently making its way through the legislative process are entirely welcome if they also provide protection for legitimate reporting on matters of public interest.
It is perfectly appropriate to have legal limits on the purely prurient prying that sometimes blights the newspaper landscape. But such limits must themselves be limited. Those who would stand on the outraged propriety of their privacy rights to avoid scrutiny of their exercise of power or their wrong-doing must not be allowed to do so. Lamont’s judgment is another brick in the common-law wall ensuring that they cannot.
The judgment is important not just because it enabled reporting on Malema’s mysterious finances to continue, but also because it rejects the narrow construction that he and others within the ruling alliance would like to put on public accountability. It is not just elected representatives or state officials who are public figures, but also anyone whose conduct calls for public scrutiny, including political and business leaders.
Not least among those who clearly require scrutiny are those who have the unofficial power to influence the awarding of contracts, jobs and government grants. Malema clearly seems to fall into that category, as do regional party kingpins, business cronies, union bosses and the fixers who move between them, lubricating deals and securing influence.
As the tension rises ahead of the ANC’s 2012 conference, we are going to need more sunlight in the backrooms of politics, not less.
Tenderpreneurs take note: you can’t be a private person when you feed off the public purse.