Liability for the Mass Publication of Private Information in South African Law: NM v Smith (Freedom of Expression Institute as Amicus Curiae)

• Jurisdiction: South Africa
• Pages: 387-404
• Date: 05 September 2019
• Published date: 05 September 2019
• Author: Helen Scott

387

LIABILITY FOR THE MASS PUBLICATION

OF PRIVATE INFORMATION IN SOUTH

AFRICAN LAW: NM V SMITH (FREEDOM OF

EXPRESSION INSTITUTE AS AMICUS CURIAE)*

Helen Scott

BA (Hon) LLB BCL MPhil DPhil

Senior Lecturer, University of Cape Town; CUF Lecturer, St Catherine’s College, Oxford

1   Liability for the mass publication of private information before 

NM v Smith (Freedom of Expression Institute as Amicus Curiae)1

The action in resp ect of the mass publication of private information in

South African law was rst recognised by Watermeyer J in O’Keeffe v Argus

Printing and Publishing Co Ltd i n 1954.2 Here a photograph of a female jour-

nalist ring a pistol had been published by the rst defendant’s newspaper, The

Argus, in the context of an advertise ment for guns and a mmunition placed by

the second defendant: she had given her c onsent to the use of the image as an

illustration for an article in The Argus newspaper, but she had not consented

to its us e for advertising pur poses; neither had she consented to the publica-

tion of her name. O’Keeffe brought an a ctio iniuriarum aga inst the rst and

second defendants. She alleged that in the circumstances the publication of her

photograph and name had constituted a violation of her dignity. The defend-

ants excepted to the plaintif f’s claim on the grou nds that it disclosed no harm

actionable under the actio iniuriaru m.3 However, Watermeyer J dismisse d the

exception. The actio iniuriarum protect ed person, dign ity and reputation, and

the unauthoris ed publication of a person’s photograph and n ame for advertis-

ing purposes was capable of constituti ng an aggression upon that person’s

dignity where th is was understood to incorporat e a wide range of personality

interests, includi ng her interest in privacy.4

The O’Keeffe decision has often been applied i n South Africa n law.5 It is

clear from that case and those following it that, in the absence of a defence, the

* This ar ticle grew ou t of a paper presented at the conferen ce of the World So ciety of Mixe d Jurisdict ion

Jurists in Edi nburgh in June 2007, and I am gratefu l for the helpful comments I received there . Thank you

also to the members of the Private Law Semin ar Group at the University of Cape Town for their comments

on an early dr aft of the paper and t o Professor Anton Fagan fo r his comments on th e final version.

1 2007 5 SA 250 (CC).

2 1954 2 SA 244 (C).

3 “There was no i ndication … of any int ention on the part of t he defendants to i nsult the plainti ff.” (248).

4 As to whether a particular instance of publ ication would amount to an iniuria, “ much must depend up on

the circu mstances of each part icular case, the natu re of the photo graph, the personality of the plaint iff,

his station i n life, his previou s habits with referen ce to publicity and th e like”. (249).

5 See eg Mhl ongo v Bailey 1958 1 SA 370 (W) and more recently Natio nal Media Ltd v Jooste 1996 2 SA

262 (A). S ee also the im portant observation s made by Corbe tt CJ in Fina ncial Mai l (Pty) Ltd v Sage

Holdings Ltd 1993 2 SA 451 (A) 465-466, referred to with approv al by Ackermann J in Bernst ein v Bester

NNO 1996 2 SA 751 (CC) 789.

(2007) 18 Stell LR 387

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intentional i nfringement of the plaintiff’s privacy th rough the mass publica-

tion of objectively private information without her consent gives rise to an

actio iniuria rum.6 Admittedly, there is room for debate concer ning the scope

of objectively private i nformation: for example, it is unclear whether one’s

image is invariably private.7 Moreover, sub sequent decisions have t ended to

place the evidentiary bu rden of proving ab sence of intention on the defend-

ant: provided that the plaintif f can show that her privac y has been u nlawfully

infri nged, animu s iniuriandi will be presumed in her favour.8 However, there

has been little doubt concerning the fault standard itself. As an aspect of the

actio iniuriarum, the action in respect of the mass publication of private infor-

mation has been a lmost universally assumed to r equire animus iniuriand i on

the part of the defendant.9 However, the decision of the Constitutional Cour t

in NM v Smith (Freedom of Expres sion Institute as Ami cus Curiae)10 in April

2007 has challenged this v iew.

2   NM v Smith (Freedom of Expression Institute as Amicus Curiae)

2 1 Facts

The fa cts are set out in the judgment of Madala J. The applicants in this

matter were three HIV-positive women who lived in informal settlements near

Atteridgeville, Preto ria. The respondents were a journalist, Charlene Smith; a

Member of Parliament, Pat ricia de Lille; and a publisher, New Africa Books.

The applicants had participated in clinical t rials run by the Medical Faculty

at the University of Pretoria for a certai n combination of HI V drugs. A long

with other participant s in the tria ls they had raised concer ns about illness and

fatalities a mong those involved. In April 2000, the Minister of Health made

a stateme nt to parliament regardi ng the effects of the drugs and called for a

report from the Medicines Control Council. At the same time, Patricia de

Lille was contacted by a priest who ran a support group for people living with

HIV/AIDS which had been attended by the applicants and asked to investigate

their c omplaints. She subsequently met with some of the participants in the

trials, including the applicants. In August, the University comm issioned an

external inquiry i nto the conduct of the tr ials, headed by Professor Strauss.

6 See eg Neeth ling, Potgieter & Visse r Law of Personality 2 ed (20 05) 231-236. It is unclear whether

publication of p rivate i nformation to only a few people co nstitutes an iniuria. It seem s that where a

confident ial relat ionship existed between plaintiff and defendant – in particu lar whe re the defendant

specifica lly agreed not to disclose the i nformation i n question – dis closure of infor mation confid ed will

be actionable even it is made to only a few people: see Janse n van Vuuren NNO v Kru ger 1993 4 SA 842

(A). On the other hand, no such con fidential relati onship is required t o render unlawfu l the mass publica-

tion of private fa cts. See general ly Neethling et al La w of Personality 227-231.

7 See eg Neethli ng et al Law of Persona lity 231-232.

8 Kidson v SA Asso ciated News papers Ltd 1957 3 SA 461 (W); Jan sen van Vuuren NNO v Kruger 1993

4 SA 8 42 (A). It shou ld be not ed that neither of these ca ses concer ned the mass publ ication of private

informat ion: the Kid son case concerned t he publication of false alle gations which were insult ing to the

plaintiff , although t hey were not u nderstood a s defamatory by the wide r public; the Jansen van Vuu ren

case concer ned the breach of doct or/patient conf identiality.

9 Animus i niuriandi appears to have been irrebutt ably presumed in Kidso n v SA A ssociated Ne wspapers

1957 3 SA 461 (W). However, it seems that the clai m in that case was analy sed as analogous to a defam a-

tion claim, an d strict liabilit y applied for that re ason. See fur ther section 3 below.

10 2007 5 SA 250 (CC).

388 STELL LR 2007 3

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