By Natasha Joseph
Health Minister Manto Tshabalala-Msimang's constitutional right to privacy is outweighed by her role as a public figure.
Media experts say that a Sunday Times report which detailed Tshabalala-Msimang's alleged antics while recovering from a shoulder operation in a Cape Town hospital in 2005 did not "delve gratuitously into private questions" and that "the exposure of private facts is linked to public policy questions of considerable importance".
Jane Duncan, director of the Freedom of Expression Institute (FXI), said the disclosure of medical information "without express, informed consent" was a "gravely serious matter" and was not excused "simply on the grounds of freedom of expression".
"But, when it comes to the public figures, then it is possible that their right to privacy may be outweighed by overriding considerations of public interest," said Duncan.
"There is no magic formula when it comes to weighing up which comes first: the right to privacy or the public interest. Getting the balance right depends on the facts of a particular story."
Duncan said the FXI supported the Sunday Times's right to publish its story on the health minister.
"The FXI would not necessarily support invasions of the right to privacy of public figures as a matter of course, and simply because they are public figures," said Duncan.
"But in this case, the disclosure of private facts raises questions about whether Manto Tshabalala-Msimang should remain in office.
If an inappropriate person is in office, then the health of many people who rely on the public healthcare system may be affected negatively. And that, ultimately, is where the public interest in this matter lies."
Robert Brand of the Rhodes University School of Journalism and Media Studies said it was necessary to distinguish between issues of law and ethics when dealing with the Sunday Times's articles.
While he declined to comment on the merits of Tshabalala-Msimang's dispute with the Sunday Times, Brand said there was "no doubt" in South African law that medical records were considered private information.
"The publication of medical records without the consent of the patient is an actionable invasion of privacy and may also be a crime, depending on the circumstances," said Brand.
Brand said anyone sued for such articles could defend themselves by noting that the published information concerned a public figure, and that publication was in the public interest.
"Our common law recognises that public figures forfeit some, though not all, of their right to privacy, and that the public interest may override the right to privacy," said Brand.
A South African National Editors Forum (Sanef) statement released on Monday supported "the right of any editor to publish information that he/she believes to be truthful and in the public interest".
Sanef said it believed the Sunday Times would have taken "sufficient steps" to ensure its information about the health minister was correct before it went to print.
"The Sunday Times would also have deemed the publication of the information to be in the public interest," said the statement.
The organisation was opposed to "the willful, malicious and vindictive violation of privacy of individuals, especially when it concerns children and family".
"Sanef respects the individual's right to privacy, except where it conflicts clearly with public interest. The revelations concerning the minister of health fall clearly in the domain of public interest."
It hoped Tshabalala-Msimang would "take the challenge to prove the reports right or wrong".
"At the same time, Sanef respects the right of the minister, in this instance, to take up any concerns with the editor of the publication concerned. If she is not happy with the outcome, she could approach the office of the Press Ombudsman."