| Authority: | The Constitutional Court of South Africa |
|---|---|
| Jurisdiction: | South Africa |
| Relevant law: | The Constitution |
| Type: | Violation |
| Outcome: | Violation |
| Started: | January 2003 |
| Decided: | 4 April 2007 |
| Published: | 4 April 2007 |
| Fine: | N/A |
| Parties: | NM & 2 Others vs. Charlene Smith & 2 Others |
| Case No./Parties: | Case CCT 69/05 [2007] ZACC 6 |
| Appeal: | N/A |
| Original Source: | Constitutional Court of South Africa |
| Original contributor: | MZIZI Africa |
The Constitutional Court of South Africa found that New Africa Books (Pty) Ltd, a book publisher had violated the constitutional rights of three HIV-positive women by publishing their names and HIV-positive status in a biography.
In March 2002, New Africa Books (Pty) Ltd published a biography of South African Member of Parliament, Patricia de Lille.
The book was authored by Charlene Smith.
In the course of writing the book, Smith obtained a Report (an investigation on clinical trials conducted by the University of Pretoria) which had been shared with de Lille which included reference to three women living with HIV who had been on clinical drug trials – NM, SM and LH.
Neither Smith nor de Lille had been given the Report annexures which contained the Complainant's consent forms. The consent forms did not authorise full public disclosure of the participant’s identity and the fact that they were living with HIV/AIDS, but only permitted limited disclosure to facilitate the University’s research. Their names were included in the Report.
Smith tried unsuccesfully to reach NM, SM and LH and obtain the Report annexures. She ended up including the three women's names and their status in the biography.
NM, SM and LH sued Smith, de Lille and New Africa Books for damages in the Johannesburg High Court alleging the infringement of their rights to privacy, dignity, and psychological integrity.
The High Court and Supreme Court dismissed the women’s application and leave to appeal respectively necessitating the reference to the Constitutional Court.
The Constitutional Court of South Africa ruled that the disclosure of the medical information in the biography without the full and informed consent from the individuals concerned, was a violation of their right to privacy.
Only the publisher was held liable and ordered to pay the 3 women R35,000 (approximately US$2,357 (Y2021)) in damages each, and to delete any references to the women in the unsold copies of the biography.