oa Litnet Akademies : 'n Joernaal vir die Geesteswetenskappe, Natuurwetenskappe, Regte en Godsdienswetenskappe - Vonnisbespreking : dogmatiese verkenning van die reg op privaatheid kry verdere erkenning in die regspraak Greeff v Protection 4U h/a Protect International 2012 6 SA 393 (GNP) : regte
Dogmatic examination of the right to privacy obtains further recognition in case law
Before the 2003 Rugby World Cup the Springbok rugby team was assembled for a training camp which later became known as the infamous Kamp Staaldraad. At the camp the players were subjected to food and sleep deprivation, exhausting physical exercises, freezing temperatures, extreme physical discomfort and humiliating activities. Several of these activities were recorded on DVD. After the camp still photos taken from the recordings were leaked to and published in the media. The security company responsible for the recordings wanted to sell the DVDs to the public, but several of the players sought an interdict to prevent this, alleging that the publication would infringe their rights to privacy, dignity and reputation. In turn the respondents answered that distribution of the DVD was in the public interest so that the negative public perceptions about the camp could be put into perspective. They also raised the defence of volenti non fit iniuria, claiming that the players were aware of the recordings and never objected to them. Rabie J granted the interdict, holding that the publication of the images complained of, particularly those where the players were shown naked, or clearly exhausted, humiliated and traumatized, would undoubtedly be contra bonos mores and thus wrongful, infringing their personality rights involved. There was no question of consent on the side of the players and the publication would also not be in the public interest.
The decision constitutes an important continuation of the development of the protection of privacy in our law. This applies to the definition of privacy, which entails that a person may in principle still have control over private facts that have previously been disclosed; that privacy can be infringed by intrusion into or the disclosure of private facts; that the wrongfulness of an infringement of privacy is determined by the boni mores; that the publication of private facts is wrongful in principle if it is in conflict with a confidential relationship or perpetrated by the media; that consent and the public interest in information may serve here as grounds of justification; that the public interest in information should be weighed up against the right to privacy with reference to the boni mores and various factors that may play a part; and that such a public interest may be lacking even with regard to public figures involved in a newsworthy event because other factors may be decisive, such as the intensity of the infringement of privacy or the fact that publication would be in conflict with a confidential relationship.
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