In its ruling on the reporting of divorce cases, the Constitutional Court has tried to balance individual rights to privacy with the right to freedom of expression, writes Business Day in an editorial. The problem is that in allowing that the identities of the people involved can be revealed "in exceptional circumstances", without defining what those might be, it has left a major question unanswered.

Business Day writes in an editorial:

The Constitutional Court's judgment in the case of Johncom Media Investments vs Mandel and Others is a laudable attempt to balance two competing rights that are entrenched in the constitution, namely the freedom of expression and the right to privacy and dignity.

Unfortunately, it also raises as many legal questions as it answers.

The court upheld an application by the Sunday Times' publisher (which also owns 50% of Business Day) that section 12 of the Divorce Act be declared unconstitutional on the basis that the outright ban on reporting divorce proceedings is overly broad. However, the court simultaneously banned the media from revealing the names of the parties involved, with the goal of protecting their privacy, and especially that of minor children.

This may be an acceptable compromise with regard to the specific case in question, which involved a man suing his former wife and trying to change their divorce settlement after discovering that he had been misled into paying to support a dependa nt who was not his biological child. The media can now report on and discuss the broad public-interest issue raised by the case, and the parties concerned are protected from the undeniable prejudice that would result were the salacious details of their private lives to be bared to the world.

The importance of the latter cannot be dismissed; divorce cases are ugly enough as it is, and in the vast majority of cases the harm to innocent parties would far outweigh any possible public benefit to be gained from publishing the sordid details. However, sometimes issues are only of public interest because of the identity of the individuals involved, and if they happen to be exposed during divorce proceedings the new privacy provision will amount to a form of censorship.

The court clearly foresaw this and tried to circumvent the problem by ordering that parties could be identified by court order in "exceptional circumstances". But these were not defined, which virtually guarantees that the Constitutional Court will have to revisit the issue.

* This editorial first appeared in Business Day on 19 March 2009.