PoPIA v press freedom: SA court to decide on HIV disclosure case
This case echoes the 2007 Tshabalala-Msimang v Makhanya case, where the court grappled with similar issues before the Protection of Personal Information Act (PoPIA) came into effect. Now, with PoPIA providing a more defined framework, the court must once again reconcile these competing constitutional rights, this time with the added dimension of medical information disclosure and the complexities it brings.
At the heart of this legal battle lies the disclosure of Maake kaNcube's HIV status by the Sunday World, allegedly revealed by his estranged wife. This revelation brings into sharp focus the sensitivity and potential harm associated with disclosing medical information, particularly concerning an individual's health status.
Disclosing such information can cause significant harm, as highlighted in the case of NM v Smith, where the non-consensual revelation of HIV status was deemed grounds for damages. This is because medical information, unlike other forms of documentation, is intensely personal, reflecting sensitive decisions about bodily and psychological integrity and personal autonomy. It often reveals delicate choices and vulnerabilities that individuals may choose to keep private.
Press freedom
While PoPIA generally protects personal information, recognising the importance of individual privacy, it carves out an exception for journalistic expression. This exception acknowledges the public interest in freedom of the press and the vital role it plays in a democratic society. However, this exception is not absolute and should not be interpreted as a carte blanche for the media to disregard individual privacy.
The Bill of Rights, South Africa's constitutional bedrock, allows for limiting constitutional rights, including freedom of expression, if the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.
This case presents a unique challenge for the court, requiring a careful weighing of these competing rights. It necessitates considering various factors, including the public interest served by the disclosure, the nature of the information disclosed, and how it was obtained.
Was the information freely given, or was it obtained through deceptive or unethical means? Did the disclosure contribute to a matter of public concern, or was it merely aimed at sensationalising private lives? These are crucial questions the court must grapple with.
Foreign jurisprudence
Given the complexities of balancing these rights and the limited South African jurisprudence on this specific issue, the court may find it helpful to consider foreign jurisprudence.
English courts, for instance, have adopted a two-stage approach to reconcile public interest and freedom of expression. In ZXC v Bloomberg LP, the court first assessed whether a claimant has a reasonable expectation of privacy in the relevant information. If so, the second stage involves evaluating whether that expectation is outweighed by a countervailing public interest. This approach provides a structured framework for analysing such cases, ensuring that both privacy and freedom of expression are given due consideration.
In the European Court of Human Rights case of Axel Springer v Germany, the court considered a similar scenario involving an actor's arrest and conviction. The court emphasised the need to balance freedom of expression against the right to privacy, taking into account factors such as the individual's public figure status, their previous willingness to share private information, and the reliability and source of the information published. This case highlights the nuanced approach required when dealing with public figures and the varying expectations of privacy they might hold.
Individual privacy v right to know
Adding another layer of complexity, Maake kaNcube's case involves his HIV status, classified as special personal information under PoPIA. The non-consensual processing of such information is generally prohibited. However, the journalistic exception may still apply if the court deems it necessary to reconcile privacy with freedom of expression in the public interest.
This case presents a challenging legal puzzle with far-reaching implications. The court's decision will significantly impact how these rights are interpreted and applied in the future, shaping the landscape of privacy and media freedom in South Africa. It underscores the ongoing tension between individual privacy and the public's right to know, a tension that requires careful navigation and a nuanced understanding of the values enshrined in the South African Constitution.
