FXI Law Clinic Cases

The FXI has contributed to the body of knowledge on freedom of expression in South Africa through cases undertaken by the FXI Law Clinic. The FXI Law Clinic has intervened in over 200 freedom of expression related matters since its inception. 

Brief history of the FXI Law Clinic

The Media Defence Trust was established in 1989 in response to the wave of state action against the media, such as the closure of newspapers and detention of journalists. In its six years of establishment the Media Defence Trust was the sole supporter and defender of independent media and journalists. The Media Defence Trust was incorporated into the FXI in 1994, at the request of its administrators, and became the Defence Fund of the FXI. The Defence Fund was re-launched as the Freedom of Expression Defence Fund in 1997 to reflect the broadening of its role to include all cases involving freedom of expression and access to information. The Freedom of Expression Institute Law Clinic was established in 2005 and is accredited by the Law Society of South Africa.

NM/Others and Smith /Others (Freedom of Expression Institute as Amicus Curiae) 2007 (7) BCLR 751 (CC)
Three HIV-positive women brought suit against respondents for printing their names in a biography about Mrs. de Lille without proper consent. Applicants' names were published in a report (the "Strauss report"), which was circulated to a number of individuals including Mrs. de Lille; Mrs. Smith had then published the names in her book as found in the report. In publishing without explicit consent, applicants contended that respondents had violated their rights to privacy (section 14) and dignity (section 10). Though applicants originally pursued an interdict against further publication, they quickly dropped this request. Instead, they sought removal of their names from future versions and damages before the Johannesburg High Court.

The High Court refused to find for applicants on this point, holding that respondents were not negligent for publishing applicants' names in the first place. However, once the applicants' displeasure became known, respondents had acted unlawfully by continuing to publish their names, violating their rights to privacy and dignity. Damages were thus awarded for this offence.

Applicants appealed up to the Constitutional Court, which brought back a fragmented decision. The Freedom of Expression Institute intervened as amicus curiae, arguing that negligence as a ground for fault would limit the right to freedom of expression in violation of the section 36 constitutional justification clause. The Court disagreed with this argument (and respondents' other arguments), holding that respondents were aware of the lack of express consent. The fact that they had printed their names constituted an explicit violation of their right to dignity/privacy. Furthermore, the court decided that there was not a compelling public interest reason for doing so, and thus, the right to freedom of expression could not act as a "defence" of sorts. Essentially, unless public interest concerns were significant, publication of intimate details (like HIV status) should not be permitted without explicit consent.

Various other justices concurred and dissented in part with the majority's judgment. Significantly, O'Regan J. (dissenting) stated that the right to privacy in this context had to be balanced with the right to free expression. Based on the factual scenario, the publication of the names was neither negligent or intentional.
January 20 2007 By Freedom Of Expression Institute
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