NM and Others v Smith and Others (Freedom of Expression Institute as Amicus Curiae)

Three unemployed women (NM, SM, LH) living with HIV in Atteridgeville participated in FTC 302 clinical trials conducted by the University of Pretoria in 1999-2001. They complained about side effects to Father Viljoen, who approached Ms Patricia de Lille (second respondent), a Member of Parliament. Statements were taken and sent to various bodies. The University appointed Professor Strauss to conduct an independent inquiry. His report (the Strauss Report) named the applicants and their HIV status, though they had given limited consent only for the inquiry purposes. In 2001, Ms Charlene Smith (first respondent), a journalist, was commissioned to write an authorized biography of de Lille. Smith used the Strauss Report and published the applicants' names and HIV status in the book without obtaining their express consent. The book was published by New Africa Books (third respondent) in March 2002. The applicants learned of this from Dr Botes and sued for damages for breach of privacy, dignity and psychological integrity.

• Whether the disclosure of the applicants' HIV status and names constituted publication of private facts
• Whether the publication was wrongful
• Whether the respondents acted with intention (animus iniuriandi) or negligently
• Whether the common law of privacy should be developed to impose liability for negligent publication of confidential medical information
• What quantum of damages is appropriate
• The effect of a Rule 34 settlement offer on costs

Leave to appeal granted. The High Court order set aside. The respondents ordered to pay each applicant R35,000 jointly and severally as compensation. Names to be deleted from all unsold copies of the book. Each party to pay own costs in this Court. Third respondent's cross-appeal dismissed.

The binding legal principles established are: (1) Private medical information, including HIV status, is protected by the constitutional rights to privacy (section 14) and dignity (section 10). (2) Publication of a person's HIV status without their informed consent constitutes wrongful invasion of privacy. (3) The person whose HIV status is disclosed has the primary right to decide whether, when, to whom and in what circumstances such information should be released. (4) Proof of publication of private facts gives rise to a presumption of wrongfulness and intention which the defendant must rebut. (5) The traditional requirements of the actio iniuriarium (wrongfulness and intention) continue to apply to privacy claims. (6) Where highly sensitive private medical information is to be published, publishers must ensure they have the clearest possible proof of consent or that the information is genuinely in the public domain. (7) The fact that information appears in a report from a reputable institution does not automatically mean consent for broader publication has been given. (8) HIV/AIDS should not be treated differently from other life-threatening diseases for privacy purposes - the constitutional stigma is the wrongful social reaction, not the disease itself.

Several non-binding observations were made: (1) Madala J observed that being HIV positive should not be viewed as a violation of dignity; rather, unauthorized disclosure violates dignity. (2) The Court discussed the relationship between privacy, dignity and freedom as mutually reinforcing rights. (3) Langa CJ suggested (obiter) that the common law should be developed to impose liability on media defendants for negligent disclosure of private medical facts, holding them to a higher standard than ordinary citizens due to their power and reach. (4) O'Regan J discussed at length the principles from National Media v Bogoshi regarding media liability in defamation and their potential application to privacy cases, though ultimately finding them inapplicable on the facts. (5) Sachs J emphasized that the case was fundamentally about defining appropriate journalistic standards and expressed hope that a private apology would be offered and accepted. (6) The judgments contained extensive discussion of the philosophical foundations of privacy rights and their importance in a constitutional democracy. (7) O'Regan J noted concerns about the vulnerability of the applicants and the need to ensure medical care and legal advice are provided in the best interests of vulnerable persons with scrupulous attention to professional ethics.

This landmark case established important principles regarding privacy rights of people living with HIV/AIDS in South Africa. It affirmed that: (1) Private medical information, especially HIV status, enjoys strong constitutional protection under the rights to privacy and dignity. (2) Disclosure of HIV status without informed consent is wrongful and actionable. (3) The stigma attached to HIV/AIDS is inconsistent with constitutional values of human dignity. (4) Courts must balance privacy rights against freedom of expression, with particular sensitivity in cases involving vulnerable individuals. (5) While there was disagreement on whether negligence alone suffices for liability (as opposed to intention), the judgments reflect the Court's willingness to develop the common law to protect privacy rights. The case highlighted the special vulnerability of poor, marginalized individuals living with HIV and the need for scrupulous protection of their medical confidentiality.