President Motlanthe's right to privacy versus freedom of expression

“Freedom of expression as safeguarded in various constitutional and international law instruments has been developed and expanded by the case-law and the doctrine of western countries and by the struggles of journalists in a dynamic and progressive manner in line with the liberal trends and ideas of democracy that have emerged during the years following the Second World War. However, the concept of freedom of expression was enlarged with an idealistic approach to such an extent that other legitimate interests or rights, such as the right to respect the private life and the reputation of individuals, had on occasions to be subjected to inroads and lost, to some substantial degree, the required protection that those values deserve.” (By Loukis Loucaides. Judge of the European Court of Human Rights)

Therein lies the nub of the question facing South Africans concerned with whether any intrusion should be allowed into the private life of President Motlanthe. For those of you who are easily bored, let me say right now that this article does not propose looking at the sordid details of politicians’ private lives, but rather at the principles giving rise to the decision of what should be allowed and what is over the top.

“Freedom of speech is safeguarded by Article 10 of the (European) Convention (on Human Rights and the EU Court decisions) the relevant parts on which we need to concentrate being as follows:”1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society…for the protection of the reputation or rights of others”. (By Loukis Loucaides. Judge of the European Court of Human Rights)

While this point of departure might arise from EU conventions and precedents, the principle is basically the same as ours. The question is where does an individual’s freedom of expression become subject to restrictions, limitations or penalties arising from another individual’s right to privacy? It is the defining of those boundaries and particularly in the case of the media and public figures, which has everyone scratching their heads,

Where does your right to know end and an individual’s right to shut you out begin?

Those interested in this topic will find the full article from EU Court Judge Loukis Loucaides particularly fascinating.

What appears to be common among systems wherein freedom of expression is acknowledged and respected is that those in the public eye, and politicians in particular, are open to broader scrutiny and criticism than the average individual. This is not to say that this recognition extends per se into looking at family life or romantic involvements. That appears to differ from country to country.

As this blogger quite rightly points out, there is a vast difference to the way in which indiscretion is viewed in France, where it is almost expected, as opposed to the USA where the electorate is purportedly horrified at the thought of politicians being unfaithful to a spouse.

This distinction is important if the law is not to operate within a vacuum but rather reflect the society that it seeks to regulate. So, for example, legislators or judges may factor in that a bonking president is irrelevant to the French whose only concern is the party’s performance where it matters. This could lead to the boundary being more restrictive because the French don’t consider that knowledge relevant in deciding on elected officials. In the USA the right to know would be more compelling because the Americans would be horrified to learn that their presidents do … um … dine out. Like the time I made a valiant attempt to get in touch with my feminine side. Went like a bomb until Mrs Traps (the Government) found out.

In South Africa the setting of those boundaries will be covered by our constitution with the right to freedom of speech and expression as well as other legislation and case law. The latter plays an important role in giving “meat” to what our legislature intended in terms of statutes as well as setting certain of the boundaries based upon the evidence placed before them. The reaction of South Africans to the issue of whether this should be allowed or not does filter through and often forms part of the reasoning for a particular judgment.

In this case the question becomes: how much of a president’s private life should be exposed to public scrutiny. If we are not kept abreast of the intracies of his romantic life, does this affect our ability to judge his performance as a president? Where should the boundary be placed in terms of politicians when it comes to intrusion into their private lives?

These and many other factors, some set out above and others you will undoubtedly raise, which go into delineating the boundaries between these conflicting rights ie freedom of expression versus right to privacy — a topic that is global as this article from Kuwait clearly shows.

Moreover, it is a subject that will never be static. As society evolves and things that were considered taboo enter the mainstream, so too will the law and the boundaries shift. What was streng verbode 20 years ago might be commonplace today. The law will reflect that acceptance in determining whether it should be considered private or vital to the public yentas need to know.

An interesting and highly emotive topic.

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