The Constitutional Court ’s ruling in the case of NM and others versus Smith and others has aroused a significant amount of debate. Jonny Steinberg, in his Business Day column entitled “ Generous judgment instils stigma ” argues that the judgment was not backed up by valid legal argument, writes Ricky Hunt in the JournAIDS blog.

In reply, Mark Heywood, Executive Director of the AIDS Law Project, asserts that the judgment was indeed ethical and in accordance with the law, in his article, “ Power, AIDS stigma and the law.”

The crux of the dispute is that the names of three HIV positive women who had not chosen to publicly disclose their HIV status were published in a biography of Independent Democrats leader Patricia De Lille, written by journalist Charlene Smith. The women all took part in an ARV trial at the University of Pretoria in 1999.

De Lille became involved when some of the volunteers in the trial were concerned about the drugs effects – she rushed to their assistance and the subsequent report released in 2001 assured the volunteers that the University had not infringed on their rights or safety.

When writing her biography of De Lille, Smith obtained a copy of the report. She included the saga and did not check whether the women had given consent for their names to be published.

A person’s HIV status is confidential – it is personal information, and Smith was aware of this. The defence’s argument was centred on the fact that Smith received the report with the names revealed, and in turn, that Smith and De Lille could not have known that the women did not want their status publicly revealed.

The court ruled that the defence intentionally and callously published their names, or else were simply negligent in doing so.

But, Steinberg argues, “Under common law, violation of privacy because of negligence is not liable.” But the defendants were found guilty and forced to pay damages. Steinberg goes on to suggest that finding in favour of the women further entrenches the stigma of HIV, because it places cases that deal with HIV and AIDS in South Africa in a category beyond deductive argument and therefore beyond the law.

What is at question is whether the court ruled correctly. Morally, it seems right to find in favour of the complainants. They had their basic right to privacy negligently violated by people more socially powerful than themselves, as Mark Heywood suggests. If their information had been published under pseudonyms, the integrity of the book would not have suffered.

It is simply shoddy journalism, as Heywood goes on to make clear, that caused the fiasco in the first place – surely Smith should have been sensitive to the repercussions of publishing commonly understood classified information.

I feel Mark Heywood is correct in attributing the blame in this case to bad journalism. Journalists need to check facts, and those who do not do so (especially in a case that involves such a touchy revelation) should face the consequences of their carelessness.