On Wednesday, 4th April 2007 the Constitutional Court handed down judgment on the case of NM & Others v Charlene Smith, Patricia De Lille, and New Africa Books. The case concerned the publication of the applicants’ full names and HIV status in the biography of Patricia De Lille, authored by Charlene Smith and published by New Africa Books, without their consent.
Constitutional Court Decision on the case of NM & Others v Charlene Smith, Patricia De Lille, and New Africa Books.
An interesting critique of the judgment, written by journalist Jonny Steinberg and published in Business Day.
A response to Steinberg, written by ALP executive director Mark Heywood.
On 13 May 2005 Judge Ivor Schwartzman delivered a very disappointing 58-page judgment in the case of NM and others v Charlene Smith, Patricia De Lille and New Africa Books (Pty) Ltd. The case was heard in the Witwatersrand Local Division of the High Court.
The three women had originally instituted legal action against the defendants after they had published their full names and HIV status without their consent in the biography of De Lille, written by Smith and published by New Africa Books.
The women argued that the disclosure of their names and HIV status in the book was an invasion of their rights to privacy, dignity, psychological integrity and mental and intellectual well-being. They asked the Court to grant them the following relief:
- An order directing the defendants to issue a private apology to each plaintiff;
- An order directing the defendants to cause the offending passages to be excised or removed from all unsold copies of the book; and
- An order directing the defendants to pay damages of R200 000,00 to each plaintiff.
In his judgment Judge Schwartzman refers to previous case law which confirmed that the right to privacy entitles an individual to decide when and under what circumstances private facts may be made public.He also acknowledged that “because of the ignorance and prejudices of large sections of our population, an unauthorized disclosure [of HIV status] can result in social and economic ostracism” and “can even lead to mental and physical assault.”
Nevertheless, he held that Patricia De Lille and journalist Charlene Smith could not be held liable for the disclosure of the three women’s HIV status. Instead, he said that only the publisher, New Africa Books, was liable for damages and that they should pay the plaintiffs R15 000,00 each in damages. He also ordered the publishers to delete any reference to the women’s names from all unsold copies of the book — and gave the AIDS Law Project the right “any time after 30 June 2005 on 72 hours notice to inspect all copies of the book in the [publisher’s] possession.”
In summary, the reasons for Judge Schwartzman’s decision were:
- De Lille and Smith have, by their long standing involvement with people living with HIV/AIDS, demonstrated that they are unlikely to intentionally invade the privacy of a person living with HIV.
- The women’s’ names and HIV status was contained in the report of an official inquiry, commissioned by a public body into a matter of public interest. Nothing in the report suggested that any part of it was confidential. Accordingly, the defendants were entitled “to assume” that in mentioning the plaintiffs’ names and HIV status, they were acting in terms of a consent furnished by the plaintiffs to the inquiry.
- There was no legal duty on the defendants to establish the nature of the consent provided by the women for the use of their names in the report.
- Although he noted that publishing the names without informed consent had “transgressed the norms and standards of the profession” ethically, the dispute concerned legal issues and was “not a question of journalistic ethics or standards.”
- The fact that the plaintiffs had not consented to the disclosure of their names and HIV status and had asserted this right through legal action subsequent to the publication of the book in March 2002, entitles the plaintiffs to damages and to an order for the removal of their names.
- In this respect, only the publishers are liable for the damages which occurred after the women asserted their rights by starting legal action in April 2002.
In his assessment of damages, Judge Schwartzman refers to the evidence of the three women, their HIV counsellor and expert psychologists who all indicated that they lived in a state of constant fear and anxiety because of the publication of the book.
Judge Schwartzman nevertheless awarded limited damages and gave the following reasons:
- The women’s fear that their family and community would come to learn of their HIV status through the book did not materialize. This finding is in fact incorrect since NM testified how her boyfriend had come to know of her status through his friends who read the book. Their relationship deteriorated and he subsequently burned down her house.
- The women’s fears “of a likelihood that the disclosure of their status in the book will lead to this fact becoming well known is more imagined than real” because:
- The plaintiffs have little formal education and are illiterate in English. “The English literacy level of the community in which they live was not explored in evidence. What is known is that some of the people with whom they associate read magazines and newspapers.”
- Since the publication of the book, apart from the first plaintiff’s boyfriend, the plaintiffs were not confronted by anyone else who had read the book.
- “Biographies, especially those read by politicians, are directed at and read by a limited number of people. This limited readership is unlikely to include people with whom the plaintiffs come into regular contact.”
- All three plaintiffs “in any event led stressful lives that are linked to the economically strained circumstances in which they grew up and in which they appear to continue to live, their lack of education and economic opportunity, and their HIV positive status.”
- The publishers are only liable for damages caused by the book subsequent to its publication and the publisher having become aware of the fact that the plaintiffs had not consented to their names and HIV status being disclosed.
The AIDS Law Project welcomes the recognition that our client’s rights to privacy were violated and the order that their names be deleted from the book. Our clients too feel some relief that their names will be deleted from the remaining copies.
However we are unhappy with other fundamental aspects of this judgment both in terms of its findings and reasoning. It remains our opinion that Patricia De Lille and Charlene Smith should have been held liable precisely because they are acutely aware of the impact of stigma and discrimination on people living with HIV. The disclosure of our clients’ full names and HIV status in De Lille’s book did not add anything and no harm would have been done had their initials or pseudonyms been used instead. It was, for example, not disputed that neither De Lille nor Smith approached the plaintiffs to ascertain whether or not their names could be used in the book even though they both acknowledged that the plaintiffs had the right to determine the ambit of the disclosure of their names and HIV status.
The AIDS Law Project is also disappointed by the low award of damages made in this case which seems to completely disregard large portions of the plaintiffs’ testimony about the impact of the publication of the book on their lives.