pecific legislation in South Africa and the courts rely on the common law to deal with privacy law related issues.
The right to privacy is defined as the reasonable or legitimate expectation of an individual to have his or her personal information kept confidential. Privacy is not an absolute right and, in certain cases, an infringement of the right may be justified if it involves the protection of another more important right or is for a legitimate cause (such as freedom of expression).
There are two types of common law invasions of privacy. These include:
- the intrusion into a person's private space by the collection or compilation of information about an individual; and
- the publication of a person's private facts.
In respect of the latter type of intrusion, an invasion of the right to privacy may be allowed if there is public interest in the facts published. In a case involving the Financial Mail magazine, the court found that there was no public interest in the information published (confidential business discussions). Had there been public interest, publication of the information would be allowed even though it was obtained unlawfully.
For a plaintiff to prove that his or her right to privacy has been infringed by the publication of private facts, he or she must show that there was a reasonable expectation of privacy. A plaintiff's chance of success in a matter involving the invasion of his or her right to privacy is dependent on the circumstances of each case and the plaintiff's status.
People who are in the public eye or are considered to be public figures enjoy less protection of their rights to privacy. However, there are circumstances where the information published about a public person is considered by the court to not be of public interest as the information may go to the core of privacy.
There are three main defences which a defendant in an invasion of privacy right case can rely upon to justify such invasion. The defendant has to show that:
- there is truth in the public interest;
- the plaintiff consented to the publication of the information; or
- the information was published on a qualified privileged instance.
In a case involving South Africa's former Minister of Health, Manto Tshabala-Msimang, the Sunday Times newspaper sought to publish information contained in the Health Minister's medical records. The Health Minister (and Medi-Clinic) sued principally for the return of the copies of the records and requested the court to interdict the Sunday Times from further commenting on the matter.
The Court decided that Sunday Times had to return the medical records to Medi-Clinic and pay the Health Minister's legal costs. However, the Sunday Times could continue to comment on the information in the medical records as there was public interest value in such information. "There was a pressing need for the public to be informed about the information contained in the medical records".
Contempt of Court
The media is restricted from commenting on judicial decisions in pending or on-going criminal or civil trials. In certain instances the media is restricted from reporting on judicial proceedings by various exceptions to the open justice principle (for instance, where minors are involved or in divorce cases).
Contempt of court law impacts negatively on freedom of expression, but as is the case in respect of the right to privacy, the right to freedom of expression is not absolute and an infringement of such right may be justified if there are overriding considerations which call for the infringement.
There are two areas within the law pertaining to contempt of court which are of relevance to the media law:
- the crime known as scandalising the court which involves the publication of a statement that undermines the dignity, repute or authority of the courts generally or in relation to a particular judicial officer; and
- the sub judice rule.
The test for whether an act of scandalising the court has taken place is set out in a 2001 Constitutional Court case, S v Mamabolo 2001 (3) SA 409 (CC). In this case an officia