Legal Implications of IT Data and Human Rights

The South African constitution is sometimes seen as the best constitution and offering the best rights to individuals.  History shows that this grew from the tragic history of the denial of many individual rights from the old regime.  The media was not allowed to express themselves and consequently individuals were denied the right to come to an own informed decision on the current state of affairs.  Information was not freely available as many publications, organizations and thus information in general were banned.

It was only after the Truth & Reconciliation Commission exposed many of the atrocities from the previous regime, that many of us realized the extent of the binding of the freedom of expression and the abuse of basic human rights.

It is against this historical background that the Constitution of the Republic of South Africa and its emphasis on individual and human rights was adopted.  The adoption of our Constitution in 1996 can truly be seen as a “major turning point in the history of our country” (Ebrahim). 

However, experience also showed that all rights have responsibilities and that there is often two sides of a coin.  People will have competing and even sometimes conflicting rights.  Individuals have rights but often those rights are in contention with other rights, or sometimes with other individuals’ rights.  For example, person A has the right to smoke while person B has the right to inhale non-smoking clean air.  It is therefore necessary to understand how the individual rights balances out in practice. 

This article will critically discuss the legal and ethical implications of our constitutional rights of “Freedom of Expression” and “Privacy and Data” by discussing the right and responsibilities, with special application to the use of technology.  It is clear that the development of Web 2.0 and especially social networking, which includes blogging and wiki, pathed the way for many people to “express” themselves and to publish their thoughts on blogs, wikis, forums and/or email, something which was hardly possible 20 years ago.  

Freedom of Expression

The constitution of the Republic of South Africa guarantees Freedom of Expression in chapter 2 section 16:

1.  Freedom of expression

Everyone has the right to freedom of expression, which includes-

  • freedom of the press and other media;
  • freedom to receive or impart information or ideas;
  • freedom of artistic creativity; and
  • academic freedom and freedom of scientific research. 

2.   The right in subsection (1) does not extend to-

  • propaganda for war;
  • incitement of imminent violence; or
  • advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

This right ensures that individuals have the right to express themselves.  Britz & Ackerman calls this right “the cornerstone of any democracy” (2006:59).  But as this paper indicated, this right does have responsibilities in that the freedom to express one self should not impede on the privacy and/or freedom or good name of any other individual.  There should therefore be a balance between “the right of freedom of expression on the one hand, against the right to privacy and dignity of individuals on the other” (De Vos 2009).  The constitution has therefore a few restrictions as indicated in section 16(2).  The restrictions are:

  • propaganda for war;
  • incitement of imminent violence; or
  • advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. 

This article will shortly examine this right in a concrete situation.  The media broke a “scoop” recently of a sporting icon (rugby player), husband of a prominent celebrity couple who was caught with a sex worker and sniffing, what was suggested to be, drugs.  The public was divided over the issue.  There were a few angry debates between bloggers (ekkedink & vandermerwe) whether this should be published.  On the one hand people felt that what he (or they) does, is a private affair and the media should not report on these issues, or even stronger, the public don’t want to see these “juicy” information in the media .  On the other hand, a journalist replied and emphasized the “watchdog role” (corli vandermwerwe) the media plays in society.  De Vos feel strongly about the freedom of expression of the media, saying “the right to freedom of the expression as exercised by the media is fundamental to the protection of the inherent human dignity of every South Africa(n) (sic)”.  He goes on to say “when powerful people attack the media they in effect attack the right of individuals to human dignity.” (De Vos 2009). 

De Vos (2009) refers to a court case (Johncom Media Investment vs M, Case CCT 08/08), indicating the contradictory articles of the constitution (16) and article 12 of the Divorce Act 70 of 1979.  The Divorce act seeks to protect divorcing parties’ rights (and those of their children) to privacy and dignity by prohibiting publication of information that comes to light during a divorce action” (Johncom Media Investments v M).  A judge (Cassim) declared in another court case this article to be inconsistent with the Constitution (section 16(1)).   Judge Jafta agreed on the decision of Judge Cassim that the Divorce Act is inconsistent with the Constitution, but also prohibited the publication of details of any party or child in any divorce proceeding, thereby effectively agreeing on the validity of section 12 of the Divorce Act.  This example shows how difficult it sometimes is to balance conflicting rights. 

Another example is the cartoons of Zapiro, a cartoonist.  He published a cartoon of Mr Jacob Zuma which started a huge debate on whether the cartoon could not be classified under the restrictions of the Constitution on the grounds of incitement to cause harm (defamation or iniuria).  The ANC, SACP and ANCYL commented on the cartoon saying that the cartoon “borders on defamation of character and insults the integrity of the secretary general of the ANC, comrade Gwede Mantashe, and alliance leaders”. (Van Hoorn).  De Vos felt that it surely could constitute defamation of Mr Zuma, but that Mr Zuma would actually lose more in getting a judgement against Zapiro.  It will sometimes be difficult to strike a balance in the right of Freedom of Expression and the privacy and protection of others as defamation might be seen as a “method to silence the media” (Freedom of Expression Institute:1). 

Having the Internet as another form of publication, imposes this responsibility even more on individuals.  The Internet opened up many opportunities for the right of “Freedom of Expression”.  This opportunity paved the way for bloggers and journalist from depressing countries to use this medium as a way to voice their concerns and to report on human right infringements.  Tragically, many of these bloggers and journalists are being silenced by non-democratic regimes (Dabhoiwala).  Nevertheless, even on this open platform of publication, the balance should still be the ruling principle; the balance between expressing oneself vs. the privacy of another.  The Internet is therefore “no more exempt than other media from reasonable laws against hate speech, libel, fraud, child pornography and pornography in general, and other offenses. Criminal behaviour in other contexts is criminal behaviour in cyberspace, and the civil authorities have a duty and a right to enforce such laws” (Foley : 2002).  It is however, in the public interest to expose human right infringements by non-democratic regimes.

The question is still a burning issue: how does one strike a balance?  It is therefore important to notice that, although we all should have the Freedom of Expression, it should be counter-balanced by acknowledgement of the privacy of others. 

Privacy & Data Protection

The digital world we’re all participating in, have a huge effect on the right to privacy and data protection.  To willingly give our personal data to another person for a specific use was necessary even before the digital era.  But the information was used for a purpose and the availability of personal data was not that freely available.  But with the digital media and possibilities, this changes completely.  Now, individuals’ personal data can be sent via email, or even as a signature in a document, to another person and can be digitally stored and unlawfully used for another purpose.  This implies that an individual to a certain extent lose “the tracing and by implication control” (Britz & Ackerman 2006 : 46) over their  personal data.  Personal data can be stored, indexed and accessed much easier as was possible in paper format, making it easy for organizations to retrieve this information and use it “without necessarily having confirmed their accuracy or perhaps without the knowledge of the individuals concerned” (SA Law Reform Commission 2005 : 2). This obviously brings another set of rights, and endless possibilities for infringement with major impact on individuals to the fore. 

Britz & Ackerman (2006 : 46) defines privacy in this context as follows:

  • “The right to be left alone.
  • The right of control over private information
  • Freedom from judgement 

From a real-world example.  A user complained that his email was accessed by the company’s IT section without his knowledge.  This “invasion of privacy” caused him considerable harm as he was exposed regarding his sexual orientation.  On closer investigation it was found that the company’s IT policies and procedures did indicate that the resources and emails are the property of the company as they are tools to perform their job.  It was also stated that the IT section will be allowed to monitor these resources from time to time without prior notice. 

Britz & Ackerman (2006:48) indicates that this right to privacy and data protection is not a basic human right as for example, the right of Freedom of Expression, and therefore it can be waived if the following conditions are met:

  • If the invasion of privacy has a legal foundation (for example the above example through the company’s IT Policy)
  • If the invasion was reasonable in relation to the purpose of invading an individuals privacy
  • That the information obtained will not be used for any other purpose.

The South African Constitution (section 14) as well as Common Law does protect the privacy of individuals as a human right (SA Law Reform Commission, 2006) which is confirmed from the judgement of the case of O’Keeffe vs. Argus Printing and Publishing Co Ltd. 

Evaluating the validity of the above scenario, it must be said that the company did indicate their intention through the IT policies and the user did sign the acceptance thereof.  The individual however argued that, although he did accept these conditions, he still have the right to privacy.  But, “an individual’s expectation of privacy must be weighed against the conflicting rights of the community” (SA Law Reform Commission, 2006 : 19), a right which in this scenario, the organization had.  This “infringement” was not mala fide which seems to be one of the controlling factors in determining whether such an infringement was unlawful. 


This article discussed the constitutional rights of “Freedom of Expression” and “Privacy & Data Protection”.  Regarding Freedom of Expression, the author concludes that this right “must be defended against encroachment or assault from any quarter, public or private” (Scarone 2002 : 10).  The same can be said regarding the right to Privacy and Data Protection, especially reading this against the background of the South African history of infringement of individuals’ privacy.  However, the exclusions can be easier determined in relation to Privacy and Data Protection than Freedom of Expression as individuals willingly participate in the dissemination of their private information for specific, and often, trade purposes.



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