Understanding the right to privacy

Privacy and media law

The right to privacy is a fundamental part of South African law, protected by the Constitution and other legislation. It allows individuals to control their personal information and keep certain details private, away from the eyes of the state or others. This can include information about home life, health and relationships.

However, the right to privacy becomes more complex when it involves public figures or the media. Public figures often find their personal information discussed in the name of “public interest”. The law tries to strike a balance between privacy and freedom of expression, ensuring that private information is protected unless there’s a good reason for sharing it. As long as a person can establish a legitimate expectation of privacy, their right remains protected even in public settings.

What Is a legitimate expectation of privacy?

The Constitutional Court uses the concept of a “legitimate expectation of privacy” to determine when privacy should be protected. For privacy to be upheld by the courts, a person must expect privacy, and that expectation must be reasonable by normal standards.

For example, personal health details, such as HIV status, are usually considered private. In a notable case, the HIV status of three women was revealed in a biography of Patricia de Lille without their consent, violating their right to privacy and dignity. The courts ruled this disclosure was unjustified because the public did not need to know their identities. Sale of the book was prohibited until their names were removed and the women were paid compensation. Pseudonyms could easily have been used without detracting from the narrative of the book.

Limits on the right to privacy

Privacy is a constitutional right, but it’s not absolute. It can be limited in situations where other important rights come into play, such as the right to freedom of expression or the public’s right to know. Courts balance these competing rights to decide whether privacy should be protected in each case.

Invasion of privacy: how it happens

Invasion of privacy can occur in two ways:

1. Unreasonable intrusion into someone’s private life
2. Unauthorised disclosure of private information

This type of violation can be both a legal offence and a crime, such as trespassing or illegally intercepting communications.

South Africa has laws to protect against privacy invasions, such as the Regulation of Interception of Communications Act, which makes it illegal to monitor someone’s communications without consent. Violators can face heavy fines or prison time. The Electronic Communications and Transactions Act (ECTA) makes it illegal to access data without permission, which also carries heavy penalties.

Examples of privacy invasion include:

• Recording conversations without permission
• Spying, stalking or harassment
• Entering someone’s home without consent
• Eavesdropping on conversations
• Searching or interrogating someone without cause
• Hacking into someone’s computer

What are private facts?

The courts define private facts as information that would cause distress to a reasonable person if shared without consent. These include:

• Medical details
• Financial information
• Sexual history
• Family matters
• Private correspondence

Protecting personal data: POPI Act

The Protection of Personal Information Act (POPIA), which came into effect in July 2020, enforces the right to privacy and sets out minimum standards for handling personal data. The Act gives individuals rights and legal protections to safeguard their personal data and applies to anyone processing personal information, whether it’s a company or individual.

POPIA covers a wide range of personal details, such as race, gender, contact information, health, and biometric data. However, the media are exempt from some POPIA regulations. To be eligible for exemption, journalists must belong to a professional body with a code of conduct that adequately protects personal information.

Illegally obtained private information

If private information is obtained through illegal means, such as hacking, courts usually consider publishing it unlawful. However, there can be exceptions if the public has a strong interest in the information.

An example of this is the M-Net case involving the Carte Blanche news programme. Carte Blanche had gathered footage of alleged malpractice at a public hospital by secretly filming in a ward where abortions were performed. Even though the footage was obtained under questionable circumstances, the court ruled that the public’s right to know about the hospital’s practices and the media’s role in informing the public outweighed any privacy concerns of the hospital staff or administrators. The court dismissed the hospital’s attempt to stop the broadcast.

Corporate privacy

Organisations also have a right to privacy concerning their confidential information, including internal communications, business secrets, board discussions, and other commercially sensitive data. Courts have cited the public interest in maintaining the confidentiality of corporate affairs to prevent unlawful leaking of sensitive information. However, this right to privacy can be overridden by a public interest in disclosing the information, depending on the circumstances. Notably, state entities like the South African Broadcasting Corporation (SABC) do not have privacy rights.

Legal remedies for privacy violations

In cases where private information has already been disclosed, the main legal remedy is damages. If publication has not yet occurred, a party may apply for an interdict to prevent the information from being published.

When determining the amount of damages, courts look at several factors, such as:

• Whether an apology was offered
• How widely the information was shared
• The harm caused to the individual’s reputation or mental health

Damages for privacy violations are often modest. For example, in a 2007 case, three plaintiffs received R35,000 each after their HIV status was disclosed without their consent. However, each case is unique, and damages are awarded based on the specific facts of the case. Plaintiffs may also claim financial loss if it resulted from the privacy violation.

Seek professional legal advice

Simon Dippenaar and Associates Inc. is a firm of attorneys, notaries and conveyancers in Cape Town, Johannesburg and Durban offering a comprehensive range of key, up-to-date legal services. 

As attorneys, we will ensure your privacy is protected. If you think your right to privacy has been violated, or you have any questions about POPIA, contact Simon today on 086 099 5146 or email sdippenaar@sdlaw.co.za. 

Further reading:

• Non-disclosure agreements (NDAs)
• A matter of privacy

SD Law

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