The Namibian (Windhoek)

12 April 2013

Namibia: Freedom of Expression V Right to Privacy

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IN HIS seminal work ‘Law’s Empire’ the late Ronald Dworkin, arguably one of the greatest legal philosophers who dominated Anglo-American jurisprudence, posits that “we live in and by the law”. And in ‘Justice for Hedgehogs’ poetically writes that “without dignity our lives are only blinks of duration.”

It is apposite to argue here that the Namibian media, or at least some sections of it, have been operating outside the boundaries of these maxims. The importance of freedom of expression has been stressed more often and more eloquently.

Incredibly, the United States constitution elevated free speech to being the first amendment right. More so, article 21(1) (a) of our Constitution provides that: ‘(1) All persons shall have the right to: freedom of expression, which shall include freedom of the press and other media.’ However, the importance of the equally constitutionally protected right to privacy, less so. This despite the elaborate wording of article 13 of the Constitution which articulates the right to privacy. Associated with the right to privacy are the somewhat codified related personality rights to liberty and dignity. The latter rights no doubt are in competition with freedom of expression.

An excavation of reportage in our media over the past few years paints perhaps the darkest chapter for privacy rights. We have seen the worst sustained attack and aggression on the right to privacy.

Many in the media have a limited understanding of the relationship between freedom of the press and the common law right of the individual to protect personal information (privacy). In the main, both reflect civilised values but, as often happens here and elsewhere, neither can be given effect in full measure without restricting the other.

The House of Lords in Naomi Campbell v The Mirror Group Newspapers said that there is no automatic priority nor is there a presumption in favour of one rather than the other. In Agriforum v Malema, Lamont J subtly suggests that there is a hierarchy of rights and consequently that free speech ought to yield to right to equality. Guardedly, the South African Constitutional Court has affirmed that there is a hierarchy of rights. This is the approach in the emerging Namibian jurisprudence.

However, what we have come to see in some sections of the media trumps the very essence of freedom of expression, a free press and so on. When a newspaper publishes salacious details about a civil servant who practises muti at home, such information without more can never elevate debate and or facilitate constructive discussion essential in a democracy. The assumption being that democracy can only flourish when the citizenry is well informed.

What is more, a newspaper report on a messy and bitter divorce of a permanent secretary is not necessarily in the public interest. I say further, even if that was in the public interest the rights of children (article 13) and article 14(3) which says the family is the natural and fundamental group unit of society and is entitled to protection by society and the state, will take precedence.

It is therefore inconsistent with the Constitution to publish information within the context of a divorce, which may harm the children. South African Courts have rendered such practice impermissible. Divorces are not reported on in South African media, if so no names are to appear in the article, rendering the practice otiose.

Sadly, a part of our media has been unable to distinguish between what is in the public interest and what interests the public. Undoubtedly, spaghetti journalism will demand that newspapers be filled with what is interesting to the public. But at what cost? The individual’s right to privacy and dignity takes a beating in that the “demanding “ reader wants more to whet his appetite. In that enter gossip papers masquerading as newspapers, an environment where anyone who can speak and write a bit of English is a journalist.

Journalism is a noble profession in as much the same way as law is and therefore demands the highest ethical behaviour. It bears emphasis that “gossip” is not constitutionally protected free speech. Inevitably, there has been a flurry of litigation in recent years involving media defendants, good for litigation advocates but certainly not good for the media. The majority of these cases involve incorrect and or factually misleading articles.

In the foreseeable future, media defendants will be fending of suits dealing with aggression on privacy rights of individuals. The corollary is that there will be greater calls for stricter media regulation. We have witnessed this in England with the Leveson report and the defamation bill. In South Africa the media will partly be muzzled by the Personal Information Bill, whose purpose ostensibly is to give effect and or content to the constitutional right to privacy. The United Kingdom equivalent is the Data Protection Act.

Namibia will not be too far from these developments if some the media continues with its assault on the individual’s right to privacy.

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