The judgment handed down last Friday has been hailed as a victory for the Health Minister by some publications and as a victory for the Sunday Times by others. Neither party is able to declare an outright victory in this matter. The Minister was successful in having her medical records returned to her or her hospital on the basis that they were unlawfully obtained. On the other hand, the paper was given the go ahead to report on the matter based on notes taken by the journalists and information given by their (lawful) sources.
This judgment was, however, a great success for the press and freedom of expression. The relief the Minister sought was, in addition to return of her medical records, that the paper be interdicted from publishing their comments based on her medical records. The judge had the following to say as he began to address this claim:
Freedom of the press does not mean that the press is free to ruin a reputation or break a confidence, or to pollute the cause of justice or to do anything that is unlawful. However freedom of the press does mean that there should be no censorship. No unreasonable restraint should be placed on the press as to what they should publish.
The judge dealt with the tension between the freedom of the press which has its support in the freedom of expression and the Minister’s right to privacy and dignity. He also commented on the fact that the Minister, as a public figure, is subject to greater scrutiny than a person who is not a public figure although the judge drew a distinction between the press delving into the Minister’s activities as they pertain to her public office and her personal life that is unrelated to her position in the public eye. Just because you are a public figure does not mean that every aspect of your life is an open book to the press.
Because the Constitution is the standard by which all law in South Africa is to be measured, cases such as this one will almost inevitably involve a balancing of rights and Constitutional imperatives. This is a great judgment to read if you are interested in how this balancing is achieved, particularly in this area.