Duchess Meghan Markle, who has recently spoken out about her experiences in the UK, successfully took legal action against Associated Newspapers for publishing a letter she wrote to her father. Would the same have applied in SA, where privacy will soon be protected by law?
An individual's privacy is almost sacrosanct. When intrusions are threatened, the intruder (or intruders) must make sure they are within the prescripts of the law – or risk the consequences* .
Enforcement of the Protection of Personal Information Act will come into effect on 1 July, when the grace period extended comes to an end and businesses can be held liable for contraventions. POPIA gives effect to the constitutional right to privacy, which includes the right not to have the privacy of one's communications infringed, and the right to freedom of expression; which includes freedom of the press and other media.
But the rights guaranteed by the Constitution aren't absolute. Section 36 of the Constitution provides for the limitation of balancing of rights against each other – meaning sometimes the limitation of a right such as privacy can be lawful.
So where does Meghan Markle come in?
It's well-known that the Duchess of Sussex Meghan Markle sent a letter to her father, Thomas Markle. The Mail on Sunday and MailOnline, owned by Associated Newspapers Limited, got hold of the letter and reproduced large parts of it for publication.
As a result, the issue of misuse of private information, privacy and breach of the relevant data protection legislation was brought before the High Court of Justice in the United Kingdom by Markle.
In the first instance, the Court considered whether she enjoyed reasonable expectation of privacy with respect to the information in question. That implies there is something private that is worthy of protection.
The court had to consider the question of whether, in all the circumstances of the case before it, Markle's privacy rights had to yield to the imperatives of the freedom of expression enjoyed by Associated Newspapers and their audiences.
The Court needed to apply a proportionality test to determine the comparative importance of the rights claimed by both parties.
She's a public figure – but her letters are private
Notwithstanding the above, Associated Newspapers proceeded with its intrusion into the private life of Markle in both its printed and digital newspaper platforms. It further did so in circumstances where Markle had not given her consent.
This caused Markle distress, which could not be outweighed by the purpose of the publication, i.e. to satisfy the curiosity of the general public.
Moreover, the information was obtained from Markle’s father as opposed to Markle herself. It had not previously entered the public domain at the time of publication.
The Court also held that the interference with Markle’s reasonable expectation of privacy was not necessary and proportionate in pursuit of a legitimate aim of protecting the right to freedom of expression, nor was it necessary and proportionate in respect of protecting the public from being misled.
Consequently, Markle succeeded in her claim against Associated Newspapers.
Would the same apply in SA?
Were we required to consider this situation from a South African perspective, using this example, one would have to consider the concept of reasonable expectation of privacy and determine if the letter constitutes personal information in terms of POPIA.
The handling/processing of personal information in the above matter would constitute the sharing of the letter with the publication(s) and its subsequent publication to the general public.
The question would be whether there is a lawful basis for processing in terms of POPIA, and whether the conditions for lawful processing were complied with.
Therefore, considering the facts in terms of POPIA one would have to consider if there is a legitimate interest that out-weighs the interest of an individual. The reasons for publishing the letter, which publication was excessive in the Markle example, could possibly be argued as being inadequate and irrelevant as required by POPIA.
In other words, there were no legitimate grounds that Associated Newspapers could rely on. Moreover, consent to the publication of the letter was not granted, nor was the letter constituting personal information obtained from Markle herself.
So how would this matter have been dealt with in the South African context?
From 1 July 2021, a new brave world awaits us all indeed.
Ahmore Burger-Smidt, Director and Head of Data Privacy Practice at Werksmans Attorneys
* In SA, from 1 July 2021 onwards, non-compliance will lead to an enforcement notice from the Information Regulator.