DID TSHABALA-MSIMANG ENJOY A RIGHT TO PRIVACY? BY MILES CARTER

Monday, December 08, 2008
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Where does the right to privacy begin? Where does it end?
 
Consider the much-publicised litigation between the former Minister of Health, Ms Tshabalala-Msimang, and the Sunday Times, which had obtained copies of the Minister’s confidential medical records and published an article reporting the circumstances of her admission to hospital.
 
The story also contained allegations of alcohol abuse while she was in hospital.
 
The Minister instituted proceedings for the return of the medical records and an interdict against the further publication or commenting on the records.
 
The respondents (the editor, the owner, journalists and publisher of the Sunday Times) resisted the application.
 
They argued that the allegations of the Minister’s alcohol abuse during her stay in hospital, which had emerged from the hospital records, were so germane to her fitness for office as a cabinet minister that the hospital records were not confidential.
 
Disclosure was therefore justified by the great public interest in the information.
 
The court had no difficulty in holding that in terms of the National Health Act the medical records of a person were private and confidential and that, generally speaking, where a person acquires knowledge of private facts through a wrongful act of intrusion, any disclosure of such facts, whether by that person or by any other person, would in principle constitute an invasion of the right to privacy.
 
It found that the Sunday Times had contravened the National Health Act and ordered the return of the hospital records.
 
However, the Minister did not have it so easy in satisfying the court that an interdict should be granted against further publication.
 
The court said that in a case where the information sought for publication was obtained by unlawful means, there may well be overriding considerations of public interest permitting its publication. Freedom of the press was celebrated as one of the great pillars of liberty. It was entrenched in the Constitution, but it was often misunderstood.
 
“Freedom of the press does not mean that the press is free to ruin a reputation or to break a confidence, or to pollute the cause of justice or to do anything that is unlawful. However, freedom of the press does not mean that there should be no censorship. No unreasonable restraint should be placed on the press as to what they should publish.”
 
The court weighed up the interests of the individual, who may have felt violated, harmed and invaded by the publication of unlawfully obtained information, against what it called the public interest side of the equation.
 
Public interest, the court said, “is a mysterious concept, like a battered piece of string charged with elasticity, impossible to measure or weigh. The concept changes with the dawn of each new day, tempered by the facts of each case. Public interest will naturally depend on the nature of the information conveyed and on the situation of the parties involved. Public interest is central to policy debates, politics and democracy”.
 
In considering the type of information to which the public had a right, the court said that this right could in appropriate circumstances extend to information about public figures. The question that then arose, of course, was who is a public figure, and to what extent might such a public figure rely on his or her right to privacy to prevent publication of matters he or she would rather keep private.
 
The court quoted from Prof McQuoid–Mason: “In short it is submitted that the test where a person is a public figure should be: has he by his personality, status or conduct exposed himself to such a degree of publicity as to justify intrusion into, or a public discourse on, certain aspects of his private life?
 
“However, non-actionable intrusions on his privacy should be limited to those that are in the public interest or for the public benefit, so that unjustified prying into personal affairs, unrelated to the person’s public life, may be prevented.”
 
The right to freedom of expression, the court said, was the most important driver of political discourse, so essential to democracy, which in turn was a concomitant of a free society.
 
However, there were costs to an untrammelled system of free expression designed to enrich the community and enrich each participant engaged in it. These costs took the form of statements that injured people’s feelings as well as those that challenged their views.
 
The right to freedom of expression  often conflicted with the right to dignity. Both were constitutional rights, all of which had equal value. Therefore the courts had to try to reconcile them when they came into conflict.
 
Such reconciliation was achieved by recognising a limitation upon the exercise of one right to the extent that it was necessary to do so in order to accommodate the exercise of the other according to what was required by the particular circumstances and within the constraints imposed by the Constitution.
 
In other words, the court said, one weighed the extent of the limitation against the purpose, importance and effect of the intrusion and this entailed weighing the benefit that flowed from allowing the intrusion against the loss that that intrusion would incur.
 
In considering the legal principles applicable to the case before it, the court said that the extent of the limitation of the Minister’s rights had to be weighed against the benefit that flowed from allowing the intrusion of the right to receive and impart information.
 
The court said that this was a case where the need for the truth was in fact overwhelming. The personality involved, as well as her status, established the Minister’s newsworthiness. The overwhelming public interest pointed in the direction of informing the public about the contents of the medical records, although they may have been unlawfully obtained. 
 
In the circumstances, the court refused to grant an interdict against publication.
 
Notwithstanding the court’s conclusion, the judge then commented on the conduct of the journalists, stating that if he were presiding in a court of manners or ethics he might well have censured the journalists and the newspaper. He trusted that the press Ombudsman would fervently consider the conduct of the respondents.
 
He also placed on record that the possibility of a crime having been committed in contravention of the National Health Act was being investigated.
 
Miles Carter is a director in the Dispute Resolution Department of commercial law firm Bowman Gilfillan