Said the FXI in a statement issued to the press, “In the judgment, Judge Jajhbay has attempted to strike the balance between freedom of expression and the right to privacy, and in the process has attempted to make concessions to both rights. However, we do not think that the concessions made to freedom of expression go far enough.
“The FXI is disappointed at the overbreadth of the order relating to the Minister's medical records, copies of which are necessary for the newspaper to retain in order to continue its investigations into the Minister's alleged alcohol abuse and gross misconduct. This aspect of the ruling is disturbing, and has potentially negative consequences for the ability of journalists to protect their sources of information.
“Tshabalala-Msimang could have had no reasonable expectation of privacy in relation to information that she claimed to be confidential. Her medical records demonstrate behaviour that may well be inconsistent with her role as Minister of Health. This means that her right to privacy in respect of these aspects of her medical records must give way to the right of the Sunday Times to disclose this information. The judgment does not seem to take this argument into account.
The 'Manto saga' which has gripped the nation's attention in recent weeks has brought to the fore the issue of whether and to what extent the media has a right to disclose medical information relating to public officials. It has been argued that such disclosure constitutes a violation of the Minister's right to privacy under the Constitution and is also prohibited under section 14 of the National Health Act.
The FXI believes that the actions of the Sunday Times were neither unconstitutional nor unlawful, and therefore it was not necessary for the newspaper to return copies of the records. According to the FXI, the newspaper's possession of copies of the Minister's medical records and publication of information relating to the Minister constitutes a legitimate exercise of its right to freedom of expression and by extension, its right to receive and impart information.
“Further, the information in question raises serious concerns about Tshabalala-Msimang's suitability to act as Health Minister and as such, its disclosure was in the public interest, especially concerning a public figure, related to a public health issue which, of necessity, takes precedence over an individual's right to privacy,” continued the statement.
With regards to the provisions of the National Health Act, it is the FXI's view that the newspaper's disclosure of details of the Minister's medical records is permitted under section 14(2)(c) of the Act. In terms of this section, the disclosure of confidential medical information is allowed where non-disclosure represents a serious threat to public health.
“Unquestionably, the Minister's physical and mental health directly impacts on her ability to administrate properly the nation's public healthcare system. If she is incapable of performing her duties as Health Minister effectively, this poses a serious risk to public health. The exception under section 14(2)(c) therefore applies in the present circumstances, making it lawful for the newspaper to disclose medical information relating to the Minister without her consent or a court order,” added the FXI.
“We do, however, welcome the aspect of the finding that the Sunday Times is at liberty to pursue its investigation of Tshabalala-Msimang's fitness to hold office. We concur with the Judge's finding that attempts to curtail future reporting on the matter would have constituted censorship. For these reasons, the FXI believes that a final interdict which silences the Sunday Times from further commenting on or publishing details of the Minister's medical records was correctly denied by the High Court today [Thursday]. The ability of the press to freely publish information which is in the public interest is fundamental to the development of any democratic society and must be vigilantly protected as dictated by the Constitution.”
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