It is easy to understand why privacy and defamation often become tangled in public discourse and even in litigation. Both involve publishing information about a person. Both can cause deep personal harm, provoking humiliation, anger and a profound sense of invasion.
Both impinge on the right to dignity. When someone’s medical condition or private affairs are revealed without consent, the instinctive response is often to say that they have been “defamed”. The harm feels reputational because dignity is affected, and in everyday South African usage, the term defamation is used for any hurtful disclosure.
Yet the law protects different interests through different causes of action. Defamation protects reputation, how the world sees you. Privacy protects autonomy and control over one’s personal information, and one’s ability to live life free from intrusions into private space.
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They are not interchangeable. A defamation claim requires the wrongful, intentional publication of a defamatory statement concerning a plaintiff; meaning that reasonable people will tend to think less of you because of the disclosure. The right to privacy is an independent personality right, the infringement of which may itself give rise to a separate cause of action.
Privacy cannot be the subject of defamation, and defamation cannot be expanded to include privacy violations simply because both may cause emotional harm or implicate dignity. An action based on defamation, and one based on a breach of privacy, although both based on theactio iniuriarum*, remain independent and distinct actions that must be pleaded separately. When privacy and defamation are conflated in a legal setting, deserving litigants may lose meritorious claims, courts may inadvertently reinforce outdated assumptions, and the law may fail to safeguard dignity in a coherent manner.
The judgment last year of the High Court in National Union of Metal Workers of South Africa (Numsa) and Others, vs B, shows why keeping these actions distinct is essential to the success of a claim. At a meeting attended by about 14 Numsa members, one member disclosed the HIV-positive position of another individual. The affected member instituted legal action for defamation. After B’s victory in the lower court, Numsa appealed.
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