Why the right to privacy is like an onion

Politicians like to remind us that rights are not absolute – especially when they want to pass legislation that limits the rights of ordinary citizens. However, when their own rights are at stake, then they suddenly forget that rights are not absolute and claim for themselves the absolute rights that they wish to deny the rest of us.

Thus when the freedom of the media is being discussed, politicians often remind us that this right is not absolute and that it must be balanced against other rights – especially the rights of politicians to have their dignity respected and protected and to have their privacy protected. But like the right to freedom of expression, the rights to dignity and privacy are not absolute. In fact, even before we begin to consider whether rights may be limited in terms of the limitation clause, we have to look at the context within which rights are being exercised to determine its scope and content.

The right to privacy is a perfect example of a right which does not have one scope and content regardless of context, but whose reach changes depending on the context within which it is being exercised. Section 13 of the Constitution states that: “[e]very person shall have the right to his or her personal privacy, which shall include the right not to be subject to searches of his or her person, home or property, the seizure of private possessions or the violation of private communications.”

In Bernstein v Bester the Constitutional Court stated that the concept of privacy is an amorphous and elusive one and confirmed that the scope of privacy has been closely related to the concept of identity. The right to privacy is not based on a notion of the unencumbered self, but on the notion of what is necessary to have one’s own autonomous identity. But one’s identity is multi-leveled and dependning on who one is and what activity one is engaged in the level of privacy protection will differ. The right to privacy is therefore like an onion: it has many layers and the closer one gets to the skin the less protected it is. As Ackermann stated in Berstein:

The relevance of such an integrated approach to the interpretation of the right to privacy is that this process of creating context cannot be confined to any one sphere, and specifically not to an abstract individualistic approach. The truism that no right is to be considered absolute, implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks accordingly.

In a constitutional democracy ordinary citizens have a right to vote, to receive and impart information, to be active citizens who are empowered to make autonomous decisions based on as wide an array of relevant facts about a situation as possible. This means that the privacy rights of a politician will often have to yield to the far more important rights of individuals to make indpendent and informed decisions about their elected representatives.

News that KwaZulu-Natal DA leader John Steenhuisen resigned last week over an affair with party provincial spokesperson Terry Kass-Beaumont, is a case in point. Usually the affairs of an individual should be of no concern to the public at large and should not generally be splashed on the front pages of newspapers. But – rightly or wrongly – South African voters are also influenced by rather prissy moral considerations and seem to take a dim view of marital infidelity. A case in point is the outcry which followed the revelation that President Jacob Zuam fathered a love child out of wedlock.

Personally, I do not think this should normally be relevant. Unless the private actions of the politician contradicts their public statements, I would not really care what a politician gets up to in private. But if a member of the ACPD conducts a private affair with a member of the same-sex, it would be perfectly acceptable to publish such information because the party believes gay men and lesbians are perverts whose rights should not be protected and who should be discriminated against.

Similarly, if a politician promotes safe-sex and the use of condoms and is then caught fathering a love child out of wedlock, it does speak to the double standard of that politician and publication of the private life of that politician becomes fair game. Personally I believe the newspapers went too far when it published allegations of a private affair by Kgalema Motlanthe as he had never claimed to be a sexual saint. Even if these claims were true (which they probably were not) it was no business of the electorate that he was having a girfriend.

But sadly I seem to be in a minority. Most voters do care about whether their politicians have affairs and cheat on their wifes, so the publication of private information about Mr Steenhuisen’s affair was therefore legitimate. He could not claim that his right to privacy was infringed because as a politician this right is limited by the publics right to know.

Similarly, the health records of the minister of health showing that she does not live the healthy lifestyle she claims to live, is fair game. In fact in the USA the health records of the president is made public routinely because the public’s right to know is deemed to be far more important than the president’s right to privacy.

As Paris Hilton knows all too well, the more public one live one’s life, the more you give up your privacy. So much more is this the case when one is a public representative paid by taxpayers. Pity many of our politicians do not want to accept this fundamental aspect of an open and democratic society.

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