FXI's Executive Director, Jane Duncan, spoke today at a seminar hosted by the South African Human Rights Commission on "Privacy, Freedom of Expression and the Public Interest". These are her speaking notes.

What are justifiable limitations on the right to privacy?

In our view, there exists a constitutional right to privacy, which should be respected regarding health matters. A person should have a right to protect their ‘inner sanctum’ from invasion from others, which also includes the right to control the circumstances in which private facts about their matters like their health, sexuality or private lives can be disclosed.

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 right to limit access to and dissemination of private information to others. Medical information is possibly the most sensitive private information; it strikes at the core of who a person is. The disclosure of medical information without express, informed consent, is a gravely serious matter, and is not excused simply on the grounds of freedom of expression.

But people are also social beings as well. They enter into relationships that impact on others, including the private spaces of others. This is especially so with public figures, whose claims on the right to privacy may be outweighed by overriding considerations of public interest. When it comes to government officials, they are put into office on the basis of a commitment to open and accountable government. This does not mean that it is open season on all private facts of public figures, but merely those that impact on the public figure’s ability to fulfil their public functions, and hence impact on others.

There is no magic formula when it comes to weighing up which comes first: the right to privacy or the public interest. Often, it may be in the public interest for private facts to remain precisely that: private. If medical records of public figures are disclosed as a matter of course, then this may discourage other public figures from seeking medical attention when they really should, which may have serious consequences. Getting the balance right depends on the facts of a particular story, and involves high levels of judgement on the part of the media. But the general rule of thumb is that, if the 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.

Was the Sunday Times’s story such a case? On the surface of things, there is a strong argument that this was not. Firstly, the Minister was not on duty when she was admitted to the Cape Town Medi-clinic, and in any event her ill-health is not automatically a matter of public interest.

However, if a public official is ill to the extent where it impacts on his or her ability to undertake public duty, then the public interest becomes more compelling. This is especially so if the public official is conducting herself in a manner that contributes to her own ill-health, and after all as a medical person herself, she should know better. This is a person who is entrusted with the public health of all South Africans, and we have rights too, such a right to proper health care and a right to life. So information documenting judgements she makes about her own health management is information the public should have an interest in.

If the Minister received a liver unprocedurally for a self-inflicted ailment – namely alcoholic liver disease – merely because she was a Minister, then the public interest becomes overwhelming. The rights of all those who line up for organ donations, and the relatives of those who have died waiting, deserve an answer about whether she jumped the queue simply because she is a Minister. Their rights are affected too.

Also, the Sunday Times’s article deals with the Minister’s conduct, knowing full well that she is a powerful person. As the article says, ‘she knew she had power and misused it’. The article is a sorry tale of how she took the power bestowed on her by her public office, and misused it in what would generally be considered a private situation. To send a hospital staff member scurrying off into the night to buy lemons smacks of an abuse of power: would the same staff member be made to do the same for an ordinary individual? I doubt it.

If you are a Minister and you behave badly towards others, if you abuse your power over others to get things that they really should not do, then you cannot reasonably expect to argue dignity and privacy to prevent reporting on your conduct; after all, you have brought critical scrutiny on yourself by acting in an undignified manner. To those who argue that the Sunday Times’s report violated the Minister’s right to dignity, we need to ask, did she treat others with dignity? Ministers behaving badly cannot expect to be shielded from public scrutiny; they cannot have a reasonable expectation of privacy in such situations.

So the story does deal with the Minister’s official functions, in that it examines how her official functions shape how she behaves, and expects others to behave, in her private life. She herself, through her own conduct, has broken down the distinction between public and private: not the Sunday Times. If you are a public official, then you will instil confidence only if you are honest and trustworthy in both your public and private lives: the Minister’s conduct calls these values into question. So there can be little doubt that the paper’s reporting on the Minister’s conduct was in the public interest, and that the Minister could not have had a reasonable expectation of privacy concerning her conduct.

But should the paper have based its reporting on stolen medical information? Surely that is going too far, and everyone – including a Minister – should have a reasonable expectation of privacy when it comes to their medical records? In order to answer this question, it is necessary to look at the context in which the records were cited.

The medical records were used to show that she used alcohol simultaneously with sleeping medication on several occasions: a potentially extremely damaging combination. It is difficult to see how else the paper could have reported on the excessive use of alcohol and sleeping pills other than referring to medical records; while this information could have been gleaned from confidential sources, it would have been difficult to compile the facts in such detail from such sources. Also, the fact that this information was contained in her medical records must mean that her repeated, simultaneous intake of alcohol and sleeping medication was medically significant; it was not a mere behavioural quirk. This again goes to her sense of judgement as an individual and particularly a medical person, and her conduct while under medical treatment. It also goes to the argument of whether she could be considered a priority recipient for a liver transplant. While it could be argued that tippling in hospital does not make one an alcoholic, it does contribute to the general picture in the article of a person who is desperate for a drink at any costs, even when she is taking medication where the simultaneous intake of alcohol is expressly warned against, and even when an anaesthetic is pending.

Alcoholism is a terrible disease, that wrecks the lives of the people who suffer from it; if the Minister suffers from such a problem, then she deserves our utmost sympathy, but it does call into question whether she is the best person to drive a Ministry committed to the eradication of alcoholism, and to convey the message about the dangers of alcoholism. To that extent, her personal habits are a matter of public interest.

All of these things impact on her official functions so it is arguable that she could not have had a reasonable expectation of privacy in relation to these aspects of her medical records too, and that the social gain in reporting on the contents of the medical records outweighs the Minister’s right to privacy.

There are real dangers in taking this position; for instance, public figures may avoid seeking treatment out of fear that their medical records may be leaked to the media, and we need to ask ourselves at every turn whether means justify the ends. In answering this question, it is also important to separate out the question of whether the records were obtained illegally, from whether the reporting on the records was illegal. Even if someone obtained the medical records illegally, and gave them to the paper, it does not follow that publication of the information contained in the records is illegal.

In short, the paper did not delve gratuitously into private questions; the exposure of private facts was linked to public policy questions of considerable importance. The Minister also has not refuted the truthfulness of the story yet (although this may change). That is why we supported the Sunday Times's right to publish the story.

We would not necessarily support invasions of the right to privacy of public figures as a matter of course, and simply because they are public figures: but in this case, the disclosure of private facts raises questions about whether Manto Tshabalala-Msimang should remain in office. If an inappropriate person is in office, then the health of many people who rely on the public healthcare system may be affected negatively. And that, ultimately, is where the public interest in this matter lies.

S.17 of the National Health Act criminalises the possession of medical records without the express, informed consent of the person concerned. There is an exception to this rule, which relates to when the non-disclosure of medical information is a serious threat to public health: presumably this relates to situations where someone has a gravely serious communicable disease and really should be disclosed to ensure containment, such as Ebola. If this internal excuse is too narrow to excuse disclosure of medical information impacting negatively on the official conduct of a government official, then we need to question whether this clause is too narrowly, and therefore whether it is unconstitutional. As one blogger on the subject put it, ‘no-one is above the law – providing the law is, well, legal!’.

Certainly, an individual has a right to guard his or her own medical records from abusive releases, but when matters of public concern demand the telling of the individual's story to expose a wrongdoing, to inform a community of a disaster or to hold the medical system accountable, some use of individual information is necessary and justified, and should be protected by the Constitution. The rules should accommodate newsgathering. In the United States, in the context of a controversy there around journalistic use of medical records, journalists encouraged the Health Department officials to revise the proposed rules to accommodate newsgathering, specifically allowing hospitals to release "certain essential information to secure its health and safety and to enable it to oversee the conduct of its government and the performance of its health care system."

Not only does the National Health Act not necessarily support disclosure of personal medical records in certain narrow circumstances, the Promotion of Access to Information Act doesn’t either. In fact, one of the problems with PAIA is that it may not necessarily recognize the public interest in disclosure of private information: in fact the public interest override in PAIA is too narrow, while the grounds for mandatory non-disclosure are too broad. Section 46 of PAIA provides: “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), 38(a) or (b), 39(1)(a) or (b), 40, 41(1)(a) or (b), 42(1) or (3), 43(1) or (2), 44(1) or (2) or 45”, if two requirements are met. Those requirements are (a) that the disclosure of the record would reveal evidence of either a substantial contravention of, or failure to comply with, the law or an imminent and serious public safety or environmental risk and (b) the public interest in the disclosure of the record clearly outweighs the harm contemplated in the provision in question.

The use of the word “and” between subparagraphs (a) and (b) of section 46 of PAIA signifies that the requirements are cumulative. This is simply too restrictive, and needs to be changed. If the disjunctive “or” had been used in the provision, a requester could rely on the fact that the public interest in the disclosure of the record outweighs the harm contemplated in the provision in question or that disclosure of the record would reveal an imminent and serious public safety or environmental risk. A showing of either would justify disclosure. As it stands, the provision presents an insuperable obstacle in the way of a requester, and this limitation is not justifiable.

Can the commercial media represent the public interest?

However, having made the argument that disclosure of otherwise confidential medical information should be excused in this case, we need to acknowledge a tension in the argument. In the Department of Health’s advert on the Sunday Times’s report and subsequent judgement, Director General Thami Mseleku refers to the commercial motives of the Sunday Times, in supposedly violating the right to privacy of Tshabalala-Msimang. The inference behind this reference is that the paper’s public interest role is corrupted by its commercial motives. So far from representing the public interest, the paper can claim to represent nothing more than the interests of its shareholders. One blogger summed up the issue by asking, ‘has the Sunday Times become a tabloid in a broadsheet format’? This raises the question of whether the commercial media can and does represent the public interest; this question is especially relevant to the print media, given their still limited outreach, in spite of the growth of the tabloid market.

It is a fact that the commercial media sell news to make money, and that the race for greater profits may well corrupt news values. It is also a fact that heightened commercialisation and consolidation of media is fuelling this problem. The impact that commercialisation is having on the public interest nature of the media is a concern to be found in media policy circles internationally, and is strongly linked to political economy critiques by writers such as Robert McCheshney, Noam Chomsky and Edward Herman.

Political economy critiques are enjoying renewed relevance since 9/11, as joint ownership of titles has been used as a means of asserting direct control over editorial content by proprietors inspired by patriotic fervour. In the leadup to the invasion of Iraq, for instance, Rupert Murdock reportedly instructed all his titles to support the invasion.

In South Africa, the argument about media commercialisation, and its impact on the public interest role of the media, have been pursued by key figures in government, including Thabo Mbeki, Pallo Jordan, and Joel Netshitenzhe. It is also to be found in the ANC’s draft media policy. These debates link the increasing concentration and conglomeration of media to threats to the integrity of the media. Concentration, it is argued, has fostered a media that is characterised by the homogenisation of views, commodification of news and views, the dumbing down of analysis the tailoring of facts to suit its own world view: hardly a media that can claim to represent the public interest.

President Mbeki argues that '’this threat, I would contend, is as dangerous - if not more so - than 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'.

These concerns are legitimate. Media commercialisation poses a real threat to freedom of expression. But political economy arguments have also been attacked, and rightly so, for being deterministic, and for simplifying the complexity of the newsmaking process, which may still enjoy a relative autonomy from politically or commercially inspired owners or managers. Attention to detail is important in these arguments, and sweeping generalisations about the commercial media do not bring any conceptual clarity to the situation.

The argument that the paper was driven purely by the profit motive cannot be applied credibly to the Sunday Times's reporting on the Health Minister; the fact that the paper is commercial in nature complicates the issue, but does not nullify its claims to have acted in the public interest. Granted, the report had elements of tabloid journalism, with its sensationalistic headlines. But the public interest nature of the reporting on her conduct in the Cape Town Medi-Clinic remains, whether it boosted circulation figures or not.

To make this point even clearer, it is necessary to refer to a case unfolding in the US at the moment, where as many as 40 doctors and other employees at a medical centre have been suspended for leaking confidential medical information to the media about actor George Clooney’s stay there. This is arguably an example of gratuitous leaking of confidential medical information, as it is difficult to see what public interest was served by leaking information about his medical condition following a motorcycle accident; perhaps there was one, but undoubtedly it would not be as compelling as the one in the Sunday Times case. Clooney’s case is a real, live example of commercial media exploiting confidential medical information for profit. The argument about the commercial motives of the Sunday Times should not be made to a case where it applies, at best, marginally, in the face of far clearer cases where it clearly does apply.

In fact, the argument made by Mseleku that the commercial nature of the Sunday Times nullified their claim to represent the public interest is a dangerous one. We must guard against opportunistic appropriation of political economy arguments, to shield public institutions from criticism. The way to do this is – not to disparage political economy arguments – but to understand them better, and more specifically to understand if and how they apply or don’t apply to the South African print media.

For instance, it is a deep concern for us that the print media are dominated by essentially three groups, namely Johncom/ Caxton, Naspers/ Media 24 and Independent Newspapers, and conglomeration is also increasing. In many, unacknowledged ways, the government is responsible for media concentration, in spite of many in the ANC being highly critical of its effects. Concentration is in itself is a threat to the diversity of opinion. In fact, what happens to the editor of the Sunday Times in the wake of the Health Minister controversy, will be possibly the stiffest test of editorial independence yet seen in the post-apartheid print media.

There are several ways of dealing with the problem of media commercialisation, which do not seem to be part of the public debate, such as media-specific anti-concentration measures rather than relying on the blunt instrument of competition rules. The Media Development and Diversity Agency is a shadow of what it could be: again a deliberate policy choice by the government. The point is that we need a debate about how to deal with the problem of media commercialisation that is more nuanced, and that deals with causes rather than symptoms. Greater state control of content is not the solution.