NM & OTHERS VS CHARLENE SMITH AND OTHERS

The Plaintiffs in this matter were three HIV positive women whose identities were withheld for their protection, and were simply referred to as NM, SM and LH. The respondents were Charlene Smith (the writer of the biography), Miss Patricia de Lille (subject of the biography) and New Africa Books (the publishing company).

NM, SM and LH alleged that their right to privacy as well dignity had been violated when a biography of Miss Patricia de Lille that was written and published disclosed their names as well as HIV statuses.  The matter was adjudicated upon initially in the High Court where in it was held by Schwartzman J; that the public disclosure of the plaintiffs names and HIV statuses by the defendant was not unlawful and further that as a matter of policy, it would place an intolerable burden on journalists if they were required to always obtain the express, informed consent of the person concerned before disclosing his/her HIV status to the public at large.

The plaintiffs attempted to appeal the matter in the Supreme Court of appeal but were unsuccessful in doing so. The matter was then appealed in the Constitutional court and this was successful. Madala J, as supported by Moseneke DCJ, Mokgoro J, Skweyiya J, Van der Westhuizen J and Yacoob J set aside the High Court decision.  In the Constitutional court it was held that the respondent’s awareness that the applicants had not given their express consent but had still gone ahead and published their names was a violation of their rights to both privacy and dignity. The court lamented that the use of pseudonyms in this circumstance would not have made the story any less authentic, as well as that there was no proof that public interest warranted the publication of the applicant’s actual names.

In finding the above the court held all three respondents liable for damages together with the publishers for their infringement of the applicants’ rights to privacy and dignity from the moment of the publication of the book.  The amount of R35 000.00 was awarded in damages, to be paid by the three respondents to each of the applicants.

The Freedom of Expression Institute was admitted as amicus curiae. In its main argument it highlighted the importance of Freedom of Expression and the constitutional protection provided to it as well as made the argument that including negligence as a ground for fault, as contended for by the applicants, would unjustifiably limit the right to freedom of expression. The court commended FXI for its well prepared submissions and argument.