Privacy versus Media Freedom of Expression
Over the past few years the media in South Africa has received heavy criticism from the government and the ruling party, The African National Congress, ( ANC) . Organizations such as the South African Human Rights Commission ( SAHRC ) have voiced out their opinions regarding the releasing of medical records of the late Health Minister Manto Tshabalala- Msimang without her consent by the media in particular Sunday Times. This issue sparked a huge debate about the media freedom of expression vers the privacy of an individual. The ANC has called for the implementation of the Media Appeals Tribunal, which has been heavily lambasted by opposing political parties and the media.
According to the South African Constitution Section 16, Freedom of Expression states that “Everyone has the right to freedom of expression, which includes subsection (a) freedom of the press and other media,” but does this law within the constitution override ones right to privacy? Section 14 of the South African constitution states that everyone has the right to privacy, which includes not having their person or home searched. So which law is actually more supreme than the other? The National Working Committee of the ANC (NWC) issued a statement attacking the Sunday Times for its “character assassination” of the late health minister Manto Tshabalala-Msimang, “The National Working Committee views these reports with grave concern, not merely because they infringe on an individual’s right to privacy but because they affect the right of all South Africans to expect their medical information to remain confidential.” The argument within this statement of the NWC by opposing personal would be that this does not comply with public figures as it was in the public’s interest to publish the minister’s medical history and wrong doings she was involved in.
The Chairperson of the South African Medical Association DR Kgosi Letlape said medical records should not be disclosed without consent , he further on stated that , “ Everyone has to be protected by law against such conduct,” he said this in Parktown Johannesburg at the SAHRC’s freedom of expression vers privacy seminar. Dr Letlape said that doctors had a duty to keep a patient’s medical records confidential even after death, disclosing somebody’s health status was an invasion of privacy. Dr Letlape is clearly convinced that the late minister’s privacy was invaded.
According to South African Broadcasting Chief Snuki Zikalala, “We are guided by the constitution not to incite violence or hatred in our reporting, publishing such a story is disrespectful. All individuals had a right to live , not to be destroyed.” It’s become apparent that the media has solely focused on high profile politicians and not on ordinary South Africans who are relatively unknown. A high profile politician cannot come out and sue the media for defamation of character as he/she is a public figure and the media has the right to report on him or she provided it is the truth.
President Jacob Zuma said that : “ for a period of five years my person has been subjected to all types of allegations and innuendo, paraded through the media and other corridors of influence without these allegations having been tested. I have thereby been denied my constitutional right to reply and defend myself .” The response from president sparked media frenzy as the media accused him of challenging their freedom of speech. Section 16 of the SA Constitution subsection (c) states that freedom of artistic creativity is constitutional , this law protects cartoonist such as zapiro who has a multi-million rand lawsuit against him by the president for defamation of character for his shower head cartoon of the president.
FXI’s Executive Director Jane Duncan , has questioned the limitations on the right to privacy, according to Jane Duncan an invasion of privacy may include the acquisition and disclosure of private information by third parties , which is a violation of informational privacy rights . In terms of the right to privacy ,people have a limit to access and dissemination of private information to others which is a clause that is used with medical records and banking details. In summary the disclosure of such information without consent is a gravely serious and is a matter that cannot be excused easily on the grounds of the freedom of expression Act.
One might come across to a point of people being social beings as well as they enter into relationships that impact on others, including the private spaces of others. This especially complies with public figures , whose claims on the rights to privacy may be outweighed by overriding considerations of public interest. When it comes to government officials , they are put into office by the basis of a commitment to open and be accountable government. In saying so, it does not mean that the media can have an open feast on all private matters of public figures , but merely those that impact on the public figures ability to fulfill their public functions and hence impact on others.
There is no formulae when it comes to weighing which Act comes first between privacy and media freedom in terms of the constitution. In certain situations it maybe in public interest for private matters to remain precisely that private. If medical records of a public figures are disclosed as a matter of course than that might discourage other public figures from seeking medical attention which may have severe consequencies. Getting the right balance on the facts of a particular story and involves high levels of judgement on the part of the media. The general rule of thumb is that , if information relates to a person’s official functions then the rights of access to information and freedom of expression can and should take precedence over the right to privacy. Section 17 of the National Health Act criminalizes the possession of medical records without the express, informed consent of the person concerned.
There is however an exception to the rule which relates to the non-disclosure of medical information when it is a serious threat to public health. One blogger once stated that , “ no-one is above the law provided the law is , well legal.!” Section 46 of the Promotion of Access to Information Act states, “ Despite any other provision of this chapter, the information officer of a public body must grant a request for access to a record of the body contemplated in section 34 (1), 36 (1) , 37 (1)(a) or (b).
Public figures such as Thabo Mbeki , Joel Netshitenzhe and Pallo Jordan have questioned and argued the violation of privacy by the media. The media has been characterized as homogeneous in their views , commondification news and views, the dumbling down of analysis , the tailoring facts to suit it’s on world view and hardly a media that can claim to represent the public interest. Thabo Mbeki argues that , “ this threat , I would contend is as dangerous if not more so-then that posed by government . The media need to be transformed into an instrument of liberation that is critical but truthful, a media that is worthy of its freedom.” In raising these points Mbeki pleaded that we avoid resort of claims to “media bashing” to protect the media from legitimate criticism , refusing to address the critical matter of the social or public accountability of the media.
Judge Colin Lamont said, on his verdict on the urgent interdict by Julius Malema’s legal team trying to prevent city press from publishing an article about his ratanang trust, “ the applicant dealt very-superficially with fairly detailed allegations made ( by city press ) allegations he could understand. He could have dealt with them in more detail.” The judge dismissed Julius Malema’s attempt to prevent city press from publishing the article about his ratanang trust. Malema also lambasted the media for enquiring about his wealth saying his money was no bodies business.
The media has been on the receiving end of major blasts from politicians in their quest to expose those who are corrupt and power hungry. The media has not invaded anybody’s privacy in context to public figures as it in the public’s interest to hear about their leader’s profiles and history. The media in South Africa prior to 1994 was suppressed by the apartheid government as the Apartheid government used repressive laws to administer the freedom of the press. Photography Journalists such as Peter Magubane were arrested after covering the 1976 uprising and we are moving in that direction again if the State of Information Bill is passed by the President. How do you determine if this information is classified or not? Is this bill being instigated because of the media’s recent exposure of certain public figures lavish lifestyles or corruption within them? Well the media needs to stand up and fight for the liberation of their freedom as Thabo Mbeki said that the media must act as a liberation instrument.
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