 the basis that it has the potential to reintroduce censorship.
In 2011, Print Media South Africa and the South African National Editors' Forum launched a legal challenge to the Amendment Act. They argued that the provisions:
- arbitrarily exclude magazines from the exemption granted to newspapers;
- should not apply to publications aimed at educating the public; and
- that they are otherwise unconstitutional in that they amount to a prior restraint on publication.
The application was successful in the High Court and resulted in certain provisions of the Amendment Act being declared unconstitutional. The High Court finding has been referred to the Constitutional Court for confirmation.
Promotion of Access to Information Act
The Promotion of Access to Information Act, No. 2 of 2000 (the Information Act) gives effect to the right of access to information, contained in section 32(1) of the Constitution.
The Information Act allows for access to information, held by public bodies, private bodies and persons, which is required for the exercise or protection of rights. Members of the media are entitled to rely on the Information Act to request information and to use the legislation to resist claims for disclosure of its working papers and sources.
Where a request is made of a public body, it must generally respond within 30 days. The presumption is that the documentation must be provided and the public body can only refuse to provide it if a recognised ground of refusal applies. Grounds for refusal could include the facts that the documents contain confidential information or cover issues of national security.
A request to a private body (such as a media company) must include proof that the document is required for the exercise and protection of the requestor's rights.
Section 14 of the Constitution provides that "everyone has a right to privacy". "Everyone" includes corporate entities and natural persons. Although the right to privacy is entrenched in the Constitution, there is currently no privacy or data protection specific 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 plaintif