There's room to criticise the Constitutional Court ruling in the privacy case involving three HIV-positive women named in a biography of political leader Patricia de Lille, says Dario Milo of WWB in an article written exclusively for www.journalism.co.za. It has placed new burdens on the media in specific circumstances, but the general lesson is the old one: get it right.
Dr Dario Milo writes:
Our Roman-Dutch law of privacy has long regarded it as a defence to a claim for invasion of privacy that the defendant lacked the intention to invade the plaintiffÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s privacy. For example, if the defendant made a mistake ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Å“ however unreasonable ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Å“ that resulted in the defendant not having the appreciation that he was acting unlawfully in invading the privacy of the plaintiff, the defendant traditionally escaped liability.
In the law of defamation ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Å“ the law of privacyÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s first cousin ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Å“ the Supreme Court of Appeal in its famous Bogoshi judgment held that, in circumstances where the defendant is a member of the media, it is not appropriate that the defendant should be entitled to rely on the defence that it did not intend to defame the plaintiff (for example as a result of a mistake made by the defendant); this approach would not take into account the enormous power wielded by the media. Rather, media defendants have to prove that they acted without negligence in order to escape liability (of course, other defences such as truth for the public benefit remain available).
What Bogoshi did not establish is whether the negligence basis for liability also applied to media defendants in privacy cases. The question thus remained whether media defendants had to prove absence of intention or absence of negligence in privacy cases. The former is a far easier test for the media to meet: although it suffices if the media acted recklessly (ie with foresight of the possibility of harm but acting without regard to that foresight), even grossly unreasonable actions by the media will allow it to escape liability. On the other hand, a negligence standard of liability would have the result that members of the media would have to show that they acted as reasonable journalists would have in publishing the material.
These issues have now been discussed by the Constitutional Court in its long-awaited judgment in the privacy case brought by three HIV positive women whose identities had been disclosed in the biography of Patricia de Lille.
The plaintiffs sued de Lille, Charlene Smith (who authored the biography), and New Africa Books (Pty) Ltd (the publisher of the biography) in the High Court, arguing that the disclosure of their identities was unlawful and made with fault on the part of the defendants. The defendants conceded that they had not obtained the consent of the plaintiffs to the disclosure of their HIV status in the biography, but argued that they did not act with fault because they believed that the plaintiffs had indeed consented. The basis for this belief was that the plaintiffs had consented to the disclosure of their HIV status for purposes of an external report commissioned by the University of Pretoria following complaints about clinical trials that the plaintiffs had been involved in at the University. Their written consents had been attached as annexures to the report, though in terms that made it clear that their consent had only been given for purposes of the report. The report, without the annexures, had been circulated, amongst others, to de Lille.
The High Court found in favour of the defendants in regard to the initial publication of the book, ruling that although media defendants are required to establish absence of negligence, the evidence showed that there was nothing in the report or the covering letter that was sent to de Lille that indicated that the names of the plaintiffs were confidential. The defendants were therefore not negligent in regard to the initial publication.
The plaintiffs sought leave to appeal against the decision of the High Court. Permission to appeal was refused by the High Court as well as the Supreme Court of Appeal. The plaintiffs were thus compelled to approach the Constitutional Court for relief. The decision of the Constitutional Court is complex not least because the judgment, as is often the case, was not unanimous. To be sure, the judges all agreed that confidential medical information lies at the core of oneÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s right to privacy, and that oneÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s HIV status in the South African context deserves heightened protection against disclosure, especially given the potential intolerance and discrimination that results from its disclosure (for criticism of this aspect of the CourtÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s decision, see Johnny SteinbergÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s article in the Business Day of 24 April 2007, ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œSomething went wrong on Constitution HillÃƒÂ¢Ã¢â€šÂ¬Ã‚Â).
The disagreement in the Court concerned the issue of whether the defendants were liable for the initial publication of the book. There were two distinct camps: on the one hand the majority judges, who decided the case on the basis of traditional legal principles, and Justice Langa and Justice OÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢Regan on the other hand, who thought it necessary that the traditional common law should be developed to incorporate negligence as a basis for media liability for invasions of privacy.
The majority judges held that liability attached to the defendants for breaching the privacy and dignity of the plaintiffs; they ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œwere aware that they had not obtained the express informed consent of the [plaintiffs] to publish their HIV status ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â¦. [They] assumed, without any enquiry and without a factual basis, that the applicants had given ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â¦ express informed consent to disclose their names and HIV status to the public at largeÃƒÂ¢Ã¢â€šÂ¬Ã‚Â (at paras 59 and 60). Thus the majority applied the traditional test of intention; the defendants were aware that the plaintiffs had not given their consent ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œor at least foresaw the possibility that consent had not been givenÃƒÂ¢Ã¢â€šÂ¬Ã‚Â (at para 64). The plaintiffs were entitled to damages in the amount of R35 000 each.
Justice Langa concurred with the result reached by the majority but for different reasons. The evidence fell short of establishing that the defendants had acted with intention, ie knowing that they did not have the consent of the plaintiffs to the publication of their HIV status. The evidence showed that both Smith and de Lille were seasoned campaigners in the field of HIV/AIDS. They did not publish the plaintiffsÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢ HIV status knowing or foreseeing the possibility that they had not given consent; rather, they had entertained the belief that the report was a public document. However, this was not the end of the analysis. Justice Langa further held that the common law had to be developed so that negligence became the basis for liability for media defendants in privacy cases: a media defendant would have to show that it acted without negligence to escape liability: ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œIt is ÃƒÂ¢Ã¢â€šÂ¬Ã‚Â¦ constitutionally appropriate that the media should be held to a higher standard than the average personÃƒÂ¢Ã¢â€šÂ¬Ã‚Â (at para 94).
In Justice LangaÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s view, Smith and the publisher of the biography were clearly media defendants: ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œ[they] are professionals involved in the distribution of information for commercial gainÃƒÂ¢Ã¢â€šÂ¬Ã‚Â (at para 98). Although de Lille maintained control over the content of the biography, she was not a media defendant; her liability therefore depended on whether or not she had acted intentionally (which she had not). Smith had acted with negligence in that a reasonable journalist who read the report would have realised that the terms of the consent given by the plaintiffs was not unlimited, and would have taken steps to determine the exact terms of the consents. Justice Langa concluded:
ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œThe inescapable conclusion is that a reasonable journalist or a reasonable publisher would have foreseen the possibility that there was not consent. Because the possible harm was great, the effort necessary to avoid that harm minimal and the benefit of publishing the names negligible, a reasonable journalist or publisher would have taken steps to avoid that harmÃƒÂ¢Ã¢â€šÂ¬Ã‚Â (at para 111).
Like Justice Langa, Justice OÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢Regan ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Å“ the lone dissenter in the case ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Å“ also ruled that there was no evidence to show that the defendants acted with intention, and that it was necessary to develop the law of privacy to include a test of negligence for media defendants. The media are immensely powerful and it is appropriate to confer special obligations on the media; they must ensure that the publication is reasonable in all the circumstances. Where Justice OÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢Regan differed from Justice Langa was in the application of this test to the facts. Where Justice Langa had admonished Smith for not acting as a reasonable journalist would have, Justice OÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢Regan held that requiring Smith to contact the University of Pretoria or the plaintiffs to ensure that they had in fact consented would impose a ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œsignificant burden on freedom of expressionÃƒÂ¢Ã¢â€šÂ¬Ã‚Â (at para 185):
ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œJournalists must be entitled to publish information provided to them by reliable sources without rechecking in each case whether the publication was lawful, unless there is some material basis upon which to conclude that there is a risk that the original publication was not lawful. If there is a reasonable basis for suspecting that the publication of private information was without consent, a journalist will, of course, bear an obligation to checkÃƒÂ¢Ã¢â€šÂ¬Ã‚Â (at para 187).
It is disappointing that the majority judges did not engage the central media law issue at the heart of the case ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Å“ whether in privacy cases the basis for media liability should be negligence, as is the case in defamation law. It is submitted that the views of Justices Langa and OÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢Regan in this regard are in principle correct: as Justice Sachs stated in his concurring judgment, ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œthe principles developed in [Bogoshi] are eminently transportable to the law of privacyÃƒÂ¢Ã¢â€šÂ¬Ã‚Â (at para 203). There are sound justifications for the view that the negligence standard of liability is appropriate in balancing the demands of freedom of expression with the rights to dignity, privacy and reputation.
The majorityÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s decision on the facts is also puzzling: again the decisions of Justices Langa and OÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢Regan ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Å“ that the evidence did not show that the defendants intended to invade the privacy of the plaintiffs are to be preferred. Even if the majority judges were minded to label the conduct of the defendants as grossly negligent, that would not be sufficient to brand the conduct of the defendants as intentional or reckless, and to mulct them with damages on this basis. The majority of the Court bases its conclusion that the defendants knew that no consent had been given on factors such as that Smith went ahead and published even though she had made unsuccessful earlier attempts to find the consents; that de Lille failed to take sufficient steps to ascertain whether consent had been given; and that both Smith and de Lille assumed that the report was confidential. These are hardly factors that lead to the inevitable conclusion that Smith, de Lille and the publishers subjectively foresaw that the plaintiffs did not give consent, more especially in light of the contrary evidence given by Smith and de Lille; their proven track records in matters concerning HIV/Aids; and the High CourtÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s finding that no intention to invade the plaintiffsÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢ privacy existed on the evidence.
The real debate, in my view, concerns whether Justice OÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢Regan or Justice Langa are correct on the application of the negligence standard to the facts. There is some common ground: Justice Langa states that he agrees with Justice OÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢ReganÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s view that ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œjournalists should not be forced to verify disclosures made by reputable organisationsÃƒÂ¢Ã¢â€šÂ¬Ã‚Â, though he was careful to add that this principle did not create any hard-and-fast rules. But was SmithÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s belief that the report was not confidential reasonable? This is by no means an easy question to answer, and one would need to trawl through the record of evidence to reach an informed answer. Suffice to say that Justice OÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢ReganÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s approach appears to acknowledge the practical difficulties faced by journalists ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Å“ and accord the necessary breathing space ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Å“ in a manner that is not readily acknowledged by the majority judges or Justice Langa.
What lessons can the media take from this complex and controversial case? There is much to be said for the succinct summary articulated by Justice Sachs:
ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œThe moral of the story is that unless overwhelming public interest points the other way, publishers should refrain from circulating information identifying the HIV status of named individuals, unless they have the clearest possible proof of consent to publication having been given, or that the information is in the broad public domainÃƒÂ¢Ã¢â€šÂ¬Ã‚Â (my emphasis; at para 209).
While words such as ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œoverwhelmingÃƒÂ¢Ã¢â€šÂ¬Ã‚Â and ÃƒÂ¢Ã¢â€šÂ¬Ã…â€œclearest possible proofÃƒÂ¢Ã¢â€šÂ¬Ã‚Â will not be music to the ears of journalists, editors and their lawyers, it is worthwhile remembering the quite specific context of Justice SachÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s warning: on the one end of the scale, the disclosure of the HIV status of three private (and vulnerable) persons without their consent; on the other, a book author and publisher who, in the view of the majority and Justice Langa, should not have assumed that the report was not confidential, and should have taken steps to ascertain the correct position. Many privacy cases concerning state officials or celebrities will be easy to distinguish from the facts of this case, and the balance in these types of cases ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Å“ especially where the publication of a private fact serves a public interest ÃƒÂ¢Ã¢â€šÂ¬Ã¢â‚¬Å“ will usually benefit freedom of expression as opposed to privacy. Thus, to take a hypothetical example, the accurate disclosure of a high-profile politician as HIV-positive in circumstances where that person has publicly stated that he or she is HIV-negative is a factual matrix far removed from the facts of the de Lille case. The case thus illustrates, once again, how context-specific defamation and privacy cases are. The ultimate lesson for journalists from the de Lille case is the same lesson that is taught in journalism schools around the world: take great care to get your facts right, especially where the disclosure of those facts will conflict with a personÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s constitutional rights.
* Dr Dario Milo is a partner at Webber Wentzel Bowens, and a part-time lecturer in media law at the University of the Witwatersrand.