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Case Name: O’Keeffe v Argus Printing and Publishing Co. Ltd. Key words: right to privacy, unauthorised publication of photograph Country: South Africa Citation: 1954 3 SA 244(C) Date: 1954 Importance: Locus classicus for the recognition of an independent right to privacy Dignitas was widely interpreted so as to include the whole legally protected personality except corpus and fama. Facts: A photograph of an unmarried woman and well known radio personality was published without her consent as part of an advertisement for rifles, pistols and ammunition. She instituted an action on the ground that the publication infringed her right to privacy. Decision and Reasoning and Result: The question at issue here was whether a person was subject to offensive, degrading and humiliating treatment if his/her photograph and name had without his/her consent been used in the press for advertising purposes. To use a person’s photograph and name, without his consent for advertising purposes may reasonably constitute offensive conduct on the part of the user (citing Tolley v J S Fry 1930 (1) K.B. 467). In the US, too it is a well established legal principle that the unauthorised publication of a person’s photograph for advertising purposes is actionable. Here too, the unauthorised publication of a person’s photograph and name for advertising purposes was capable of constituting an aggression upon that person’s dignitas. It is however, not always so. Much depends upon the circumstances of each particular case, the nature of the photograph, the personality of the plaintiff, his station in life, his previous habits with reference to publicity and the like. All that was needed to be decided at this, the exception, stage of the action was whether the publication of the advertisement in question was capable of constituting an injuria. The Court opined that it was. Case Name: Kidson v SA Associated Newspapers Key words: publication of photograph, animus iniuriandi Country: South Africa Citation: 1957(3) SA 461(W) Date: 1957 Importance: Animus iniuriandi is presumed as soon as wrongful infringement of privacy has been proved. Facts: An article was published about lonely nurses at a hospital who were desirous of meeting men. It included a photograph of one of the nurses who was a young married person. She had not been informed that the photograph was to be used in that particular context. The publication of the photograph had been a considerable embarrassment to her. Decision, Reasoning & Result: Animus iniuriandi is presumed as soon as wrongful infringement of privacy has been proved. The Court accepting her evidence that she had been unaware that her photograph would be published in that context held that dignity had been injured by the article. Case Name: Mhlongo v Bailey and Anr. Key words: publication of photograph, privacy Country: South Africa Citation: 1958 (1) SA 370 (W) Date: 1958 Importance: wrongfulness of mass publication of private facts Facts: The plaintiff’s (a school teacher) photograph was published without permission as part of an article on a female singer, by the defendant in a journal. In the article it was alleged that the plaintiff and the singer were involved in an amorous relationship. The plaintiff sued for infringement of privacy and dignity. Decision and Reasoning and Result: Having regard to the decision in O’Keeffe, the Court held that dignitas had been infringed and allowed satisfaction. Case Name: La Grange v Schoeman Key words: photograph, court and media privileges Country: South Africa Citation: 1980 (1) SA 885 (E) Date: 1980 Importance: There is a difference between the publication of reports of judicial proceedings in which averments injurious to someone are made and the publication of the photograph of the person concerning whom the injurious remarks are made. Facts: The Respondents (members of the security police) were involved in a controversial civil case (the Mohapi hearing), relating to the death of a detainee. The applicant, a newspaper photographer attempted to take photographs of the respondents at the hearing for the purposes of publication. However, he was physically prevented and threatened against doing so. He requested an interdict, inter alia to prohibit the respondents from engaging in such conduct. Decision and Reasoning: The question for consideration was whether the Applicant in photographing the Respondents for the purposes and under the disclosed circumstances would be exercising his lawful occupation and rights as alleged. The facts of this case, take it out of the ambit of the ordinary case of unauthorised publication of photographs. It is not merely a case of a person who, for some reason not of his own asking or making, had, in the opinion of the news media become ‘newsworthy’. Here, the two Respondents had achieved notoriety because, according to the Applicant, they had been ‘nominated’ by the Counsel for Mrs. Mohapi as being the policemen who had assaulted her husband while he was in police custody. Certain allegations when made in a court of law, in the course of legal proceedings are privileged. If the press publishes a fair and accurate report of such legal proceedings again a privilege attaches thereto. The defence, in such a case is in effect, one of justification on the basis that the report of judicial proceedings is fair and accurate and that its publication is for the public benefit. There is a difference between the publication of reports of judicial proceedings in which averments injurious to someone are made and the publication of the photograph of the person concerning whom the injurious remarks are made. Accepting without reserve the right of the public to be informed of what takes place in courts of justice and the desirability that they should be so informed, the question remains whether the public has the right to be informed, by means of a photograph in the newspaper, what the person concerning whom injurious statements are made in court looks like. While the first and second respondents cannot object to the publication of a report of the legal proceedings during which they were alleged to have been Mr. Mohapi’s assailants, there is no justification in law which requires them to suffer the added indignity and inconvenience of having the photographs published in the press to satisfy curiosity and to make it possible for the public at large to identify them, as they go about their lawful avocations. If they are able to be so identified, their right to ‘tranquil enjoyment of peace of mind’ will be assailed for their privacy will be invaded and they will be open to possible ill will and disesteem. Further they will not be secure against aggression upon their persons. Therefore, the taking of the photographs or the purposes of publication and the publication thereof is not covered by the privilege attaching to a newspaper report mentioning their names. The publication of photographs would further than the than the report of the proceedings and beyond the privilege protecting the publication of such a report, thereby constituting an injuria. Result: Application dismissed with costs. Case Name: Jansen Van Vuuren v. Kruger Key words: breach of confidence, right to privacy Country: South Africa Citation: 1993 (4) SA 342 Court: South Africa, Appellate Court Date: 1993 Importance: This decision reinforced the reason for enforcing medical confidentiality- on one hand, it protected the privacy of the patient and on the other it performed a public interest function. Facts: A patient M, got himself tested for HIV. The test was found to be positive for antibodies to the virus and M was accordingly so informed a few days later. When the patient expressed his concerns as regards his right of privacy and confidentiality, he was assured by his doctor (Kruger) that the same would be respected. The next day during a game of golf with two of his medical colleagues, the doctor mentioned the fact of M testing positive to them. Both these colleagues knew M socially and had also treated him in the past. Within a few days, the news had spread to most of the town. M was subject to psychological stress, felt victimised and ostracised. He instituted an action for breach of confidentiality against the doctor. The trial court rejected his claim. Decision and Reasoning: The duty of a physician to respect the confidentiality of his patient is not merely ethical but also a legal duty. Despite the fact that this duty was not absolute and could be breached under certain circumstances, the Court found that Kruger did not have a duty to transfer the information. The Court emphasised a two-fold reason for enforcing medical confidentiality was two-fold. “On the one hand”, the court stated, “it protects the privacy of the patient. On the other it performs a public interest function.” As regards the public interest the Court reiterated the decision of the English court in X v Y, which underlined the relevance of the protection of confidentiality to public health stating: “In the long run, preservation of confidentiality is the only way of securing public health; otherwise doctors will be discredited as a source of education, for future patients will not come forward if doctors are going to squeal on them. Consequently, confidentiality is vital to secure public as well as private health, for unless those infected come forward they cannot be counselled and self-treatment does not provide the best care …” Result: Appeal allowed. Case Name: Financial Mail (Pty) Ltd v Sage Holdings Ltd. Key words: public interest, public disclosure, unlawful intrusion of privacy, telephone taps Country: South Africa Citation: 1993 (2) SA 451 (A) Court: Appellate Division Date: 1993 Importance: The unlawfulness of a (factual) infringement of privacy is adjudged in the light of contemporary boni mores and the general sense of justice of the community as perceived by the Court. Facts: The respondents (Sage Holdings, a public company and its chairman) had in the court a quo obtained an interdict in order to prohibit the appellants from publishing an article in the Financial Mail on the ground that the article was based on information that had been obtained illegally and that it was defamatory of the respondents. Parts of the article had been obtained from a memorandum marked ‘strictly private and confidential’ and regarding which no to permission to publish had ever been given and from tape recordings of telephone conversations between one of the first respondent’s directors and a number of outsiders which had been obtained by means of illegitimate eavesdropping equipment. The main issue revolved around whether the appellants having come into possession of tapes produced in the tapping process were entitled to use the information derived there from in an article to be published in the Financial Mail. Decision and reasoning: Although a corporation has ‘no feeling to outrage or offend’ it has a reputation (or fama) in respect of the business or other activities in which it is engaged which can be damaged by defamatory statements and it is only proper that it should be afforded the usual legal processes for vindicating that reputation. An invasion of privacy may take two different forms: i. an unlawful intrusion upon the personal privacy of another and ii. the unlawful publication of private facts about a person It is not all intrusions or publications that are unlawful. And in demarcating the boundary between lawfulness and unlawfulness in the field, the Court must have regard to the particular facts of the case and judge them in the light of contemporary boni mores and the general sense of justice of the community as perceived by the Court. The telephone tapping that occurred in the instant case was an unlawful invasion of the privacy of Sage and its corporate executives and appellants did not seek to justify the tapping; nor was there acceptable evidence on record that would possibly have provided such justification. Since the issue to be decided revolved around whether the appellants, having come into possession of tapes that produced in the tapping process, were entitled to use the information derived there from in an article to be published in the Financial Mail; the fact that the information in question was obtained by means of an unlawful intrusion upon privacy was a factor of major significance. In the case that there had been any overriding grounds in favour of the public being informed (through the use of the information so obtained), the Court would have despite the source, unlawful means or manner employed, have concluded that the publication be permitted. There is a public interest in preserving confidentiality in regard to private affairs and in discouraging the leaking of private and confidential information, unlawfully obtained to the media (and others). Result: Application dismissed Case Name: Bernstein v Bester NO Key words: scope of privacy, business dealings Country: South Africa Citation: 1996 (2) SA (A) Court: Constitutional Court of South Africa Case No: CCT 23/95 Date: 27 March 1996 Importance: The right of privacy acknowledged in the truly personal sphere is curtailed in relation to a person's business dealings Facts: The applicants challenged the constitutionality of ss. 417 and 418 of the Companies Act which permit the summoning and examination of any person in a company’s winding up proceedings. The sections permit the imprisonment of anyone failing to comply with the summons and to submit to examination. The applicant broadly attacked the Act in the present case and sought to strike down the examination mechanism in its entirety on the grounds that it infringed an examinee’s rights to freedom and security of the person, to personal privacy and freedom from seizure of private possessions, to fair administrative procedures, to fairness in civil litigation and to equality. Decision and Reasoning: The Court unanimously rejected each of the above arguments. It found that, except for the extent of unconstitutionality identified in Ferreira v Levin NO [1996 (1) SA 984 (CC)], ss. 417 and 418 of the Act were not unconstitutional. The constitutionality of the sections was considered in the light of the duty of the Supreme Court to prevent the oppressive, vexatious and unfair use of the examination procedures. The examination mechanism furthered very important public policy objectives, such as the honest conduct of the affairs of a company. Considering first the allegation that the provisions violated the right to freedom, the Court held that the obligation to honour a subpoena was a civic duty recognised in all open and democratic societies and was therefore not an invasion of freedom. Following the interpretation of freedom favoured by the majority in Ferreira v Levin NO, the Court held that imprisonment for failing to comply with a subpoena did not infringe upon the right not to be detained without trial, a right related to the freedom right. Turning to the challenge based on the right to privacy and not to be subject to seizure of private possessions, the Court noted that in terms of the Companies Act, an examinee was excused from answering questions if he or she had ‘sufficient cause.’ The relevant section had to be interpreted in such a way that if answering a question would unjustifiably infringe or threaten to infringe any of the examinee’s Chapter 3 rights, it would constitute ‘sufficient cause’ for refusing to answer. The same applied to the production of documents. Thus interpreted, ss. 417 and 418 were consistent with the Constitution. The majority of the Court expressed the opinion that, on the available facts, it was in any event difficult to say how there could be an infringement of the right to privacy. The benefits of limited liability brought with them corresponding obligations of disclosure and accountability. Moreover, the right of privacy acknowledged in the truly personal sphere was curtailed in relation to a person's business dealings. The same went for the contention that the obligation to produce documents constituted an unconstitutional seizure of private possessions. Result: Application dismissed. Case Name: National Media Ltd and Others v Bogoshi Key words: defamation, right of reputation, freedom of expression, common law Country: South Africa Citation: [1998] 4 All SA 347(A); 1998 (4) SA 1195 (SCA) Court: Supreme Court of Appeal Case No: 579/96 Date: 29 September 1998 Importance: Watershed judgement signifying the common law emphasis on freedom of expression. Facts: This was an appeal against the judgment in Bogoshi v National Media Ltd and Others 1996 (3) SA 78(W), in which an application to amend the plea in an action for damages arising from the publication of a series of defamatory articles published in a newspaper was refused. The instant appellants (defendants in the Court a quo) had sued the respondent for damages arising from the publication of a series of allegedly defamatory articles. The first defendant was the owner and publisher, second defendant the editor, the third defendant the distributor, and the fourth defendant the printer of City Press. Their original plea had been that the articles were substantially true and had been published for the public benefit. In the application for amendment they had sought to introduce three additional defences to cater to their apprehension that they might not be able to establish the truth of the statements contained in the amendments. The first being that there had been no intention to defame, the second to the same effect in relation to the fourth defendant and the third being that the publication of the articles was lawful and protected under the freedom of speech and expression clause in the Constitution of the Republic of South Africa Act 200 of 1993. The third defence was considered to be bad in law and the application was dismissed without consideration of the other two defences. Decision and Reasoning: The question for decision was whether the plea in its amended form was excipiable The Appellants argued that the strict liability of the members of the press was unconstitutional for the following reasons: (i) it impinged on the freedom of speech and expression, which included the freedom of the press and media conferred by s 15(1), or (ii) because it was not in accordance with the spirit, purport and object of chap 3 as required by s 35(3) of the interim Constitution. An alternative basis of argument was that Pakendorf’s case [1982 3 SA 146(A) where the Court had held that newspaper owners, publishers, editors and printers were strictly liable for defamation] was wrongly decided and that the third defence was valid under common law. The law of defamation requires a balance to be struck between the right to reputation on the one hand, and the freedom of expression on the other. It would be wrong to regard either of the rival interests before the Court as more important than the other. The importance of the protection of reputation is self-evident. The freedom of expression is equally important. An examination was made of the way the two interests had weighed in the country in the past. (Argus Printing and Publishing Co. Ltd. v Esselen’s Estate). The possible grounds of justification for strict liability were examined. It is a right and indeed a vital function of the press to make available to the community information and criticism about every aspect of public, political, social and economic activity and thus to contribute to the formation of public opinion. The press and the rest of the media provide the means by which useful and sometimes vital, information about the daily affairs of the nation is conveyed to the citizens -from the highest to the lowest ranks. If it is to be recognised, as must be, the democratic imperative that the common good is best served by the free flow of information and the task of the media in the process, it is clear that strict liability cannot be defended and should have been rejected in Pakendorf. While much has been written about the chilling effects of defamation actions, nothing can be more chilling that the prospect of being mulcted in damages for even the slightest error. Therefore, the decision in Pakendorf must be overruled, though this did not mean that its conclusion on the facts of the case was assailable. Reasonableness of Publication In considering reasonableness of publication, account must be obviously taken of the nature, extent and tone of the allegations. The tone in which a newspaper article is written, or the way in which it is represented sometimes provides additional, and perhaps unnecessary, sting. Ultimately there can be no justification for the publication of untruths, and members of the press should not be left with the impression that they have a license to lower the standards of care which must be observed before defamatory material is published in a newspaper. A high degree of circumspection must be expected of editors and their editorial staff on account of the nature of their occupation, particularly in regard to the powerful position of the press and the credibility which it enjoys amongst large sections of the community (reiterating Prof Visser, 1982 THRHR). Other factors like opportunity given to the person concerned to respond, and the need to publish before establishing the truth in appositive manner are also relevant. In the light of the above considerations, the amendment to the extent that it relied on the lawfulness of the publications was not excipiable. Question of fault The instant conclusion re Pakendorf necessitated reconsideration of the liability of the members of the press on some other basis. Vicarious liability was not an answer. Modern trends of freelancing however, make it imperative to consider the benefit which an individual employee derives form the requirement of consciously wrongful intent. This allows the owner to escape liability whenever his employee is able to rebut the presumption of animus injuriandi. Where the media was involved, absence of knowledge or wrongfulness could not be relied upon as a defence if the lack of knowledge was due to the negligence of the defendant. In so far as the first and second defences in effect signified that the third and fourth defendants were not negligent, the amended plea would not be excipiable. With regard to the onus of proof, it was held that all the facts on which the defendants had relied to show that publication was reasonable and that they were not negligent had to be proved. Proof of reasonableness would usually be proof of lack of negligence. The constitutional compatibility of the Court’s conclusion in the light of s 35(3) of the interim Constitution was examined. It was held that its interpretation of common law achieved a balance between the right to protect one’s reputation and freedom of the press. The Court found nothing in the text or spirit of the interim Constitution to support the view that the right to dignity or reputation ought to be treated differently from other rights. On its view of common law, the Court concluded that the amended plea would contain all the essential allegations for a valid defence and that the amendment ought to be allowed. Result: Appeal allowed with costs. Case Name: Ms Carike Keuzenkamp v 94.7 Highveld Stereo (Respondent) Key words: satirical parody, right to privacy Country: South Africa Citation: Case No: 1999/07 94.7 Highveld Stereo - "Raai Wat" - Rude Awakening Show Court : Broadcasting Tribunal Date : July 1997 Case N°: 1999/07 Importance: Without any exceptional overriding legitimate public interest, the temptation to assail the respect, self-esteem, moral integrity, honour, reputation, or the mental tranquillity or social worth of any individual without reasonable and just cause must be resisted. Facts: On the 25th January 1999 Highveld Stereo, broadcast a presentation in the form of a quiz game show- In this case the mystery object disclosed to the audience in crude, profane and vulgar words was ‘n swartman se piel’. The broadcast in issue concerned the ‘Raai Wat’ sketch allegedly intended as a humoristic, salacious and satirical parody of White South Africans historical sexual prejudices regarding the perceived potent sexuality of Black South Africans. The complainant contended that the Respondent had infringed Clause 5 of the Commission's Code- in that it impaired her dignity and invaded her privacy. She also contended that the innuendo of sexual depravity and promiscuity through her impersonation caused her particular distress and there was no overriding legitimate public interest served by such broadcast. Decision and Reasoning: The right to privacy is recognised as an independent personality right which the Courts have included within the concept of dignitas. Section 10 of the Bill of Rights enshrines the sanctity of human dignity and states that, “everyone has inherent dignity and the right to have their dignity respected and protected. Individual members of society are enjoined to acknowledge the intrinsic worth of all human beings, who are entitled to be treated as worthy of respect and concern”. The Bill of Rights does not deny the existence of any rights or freedom that are recognised or conferred by the common law, customary law, or legislation, to the extent that they are consistent with the Bill. Logically, it follows that the right to privacy and consequently dignity is not absolute. The Rights in the Bill of rights may be limited only in terms of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based in human dignity, equality and freedom, taking into account all relevant factors, stated in the Constitution. At common law, the determination as to whether an invasion of privacy has taken
place constitutes a single enquiry, namely an assessment of its unlawfulness.
The presence of a ground of justification excludes the wrongfulness of an
invasion of privacy. Were a person to claim that an
injured party retains no shred of dignity capable of being assailed, the answer
to that contention is that, a person's dignity is absolute and his right thereto
inalienable. At common law those rights are enjoyed by every subject
irrespective of his/her stature in life or personal circumstances and without
reference to individual merit [whether intrinsic or by reputation]. Without any exceptional
overriding legitimate public interest, the temptation to assail the respect,
self-esteem, moral integrity, honour, reputation, or the mental tranquillity or
social worth of any individual without reasonable and just cause must be
resisted. In this case, there was no indication, suggestion or proof that the
conduct or utterances of the Complainant invited or rendered her self open to
ridicule, humiliation or degradation by the Respondent. The complainant is therefore to
be protected against offensive degrading and humiliating conduct and treatment
without just and reasonable cause. She has not Result: Complaint upheld. Fine imposed. Case Name: Prinsloo v. RCP Media Ltd (t/a Rapport) Key words publication of images, freedom of expression, right to privacy, dignity Country: South Africa Citation: [2003] (4) SA 456 Court: South Africa, High Court Date: 2002 Case N°: Case No. 32983/2002 Importance: Publication of images of others’ sexual conduct is permitted when the public interest and the promotion of freedom of expression outweigh the constitutional rights to privacy and dignity. In order to justify the publication of images revealing another’s sexual conduct, the public interest must be extremely significant. Facts: A film and compact disc consisting of photographic images was given by Prinsloo, the applicant, to the respondent to develop. The images depicted the applicant and his common law wife engaged in sexual activities. Allegedly, the film and disc were stolen from the respondent’s premises. The applicant applied for an urgent relief order that the respondent return the photographic materials, on the grounds that there was a real possibility that the materials would be shown to the public. Such exposure would in addition to violating his and his common-law wife’s privacy and dignity, would detrimentally affect the applicant’s and his wife’s professional reputation and integrity as lawyers. The respondent refused to return the material and argued that it was their constitutional right and professional duty to inform the public of the applicant’s and his wife’s compromised integrity. It also contended that it was their duty to ensure the flow of information. Decision and reasoning: In the instant case, the Court was required to balance two competing rights - on one hand, there was the applicant’s right to privacy and dignity, and on the other there was the respondent’s right to freedom of expression. The public interest in ensuring the flow of information and transparency is also an important consideration in the court’s decision. There is a clear distinction between the public interest, and the public becoming interested in an issue. Public interest would be engaged if the photographic materials exposed sexual activities that compromised the applicant’s and his wife’s professional integrity—for instance, the exposure of an inappropriate sexual relationship with clients. This would amount to a violation of professional ethics, thus clearly being within the public interest. In this case, the images reveal private sexual conduct carried out in the bedroom of the applicant between common-law spouses. No public interest exists that justifies revealing the images to society. In order to justify the publication of images revealing another’s sexual conduct, the public interest must be extremely significant. Result: Judgement withheld, pending the resolutions of other relevant issues. Case Name: B Jordaan v 5fm 2004 Key words: comical rendition, impersonation, Broadcasting Code Country: South Africa Citation: Case No: 2004/49 5fm - Gareth Cliff Show - Comical Rendition of known actor, Kirk Douglas Court: Broadcasting Tribunal Date: 2004 Case N°: 2004/49 5fm Importance: A decision in terms of the Broadcasting Code would not protect an infringer against an action for damages based on iniuria or an infringement of the right to person’s image, which would include the right not to be impersonated. Facts: A complaint was received by the Registrar concerning a comical rendition (with objections also raised as to making fun of the disabled) of the well known actor, Kirk Douglas, by a program presenter on air. Decision and Reasoning: The Tribunal reiterated that privacy is a fundamental right. The Broadcasting Code protects the privacy of persons. Complaint was not made by Mr. Douglas’ agents in South Africa. Therefore, his personal reaction to the rendition was not known. A decision in terms of the Broadcasting Code would not protect the SABC against an action for damages by Mr Douglas based on iniuria or an infringement of the right to his image, which would include the right not to be impersonated. When a person is as famous as Mr Douglas, his rights will
be protected to a lesser degree as a result of his high profile. Accordingly,
the matter of a private action by Mr Douglas was let open. In the case that Mr
Douglas’ agents filed a complaint based on the privacy clause in regard to
future impersonations; the matter would be considered de novo. Case Name: Laugh It Off Promotions Cc v. South African Breweries International (Finance) B.V. & Ors. Key words: freedom of expression, anti-dilution provisions, racial slurs of mark Country: South Africa Citation: CCT 42/04 Court: Constitutional Court of South Africa Date: 27 May 2005 Case N°: CCT 42/04 Importance: A finding of unfair use or likelihood of detriment to the repute of a mark hinges on whether the offending expression is constitutionally protected in which case, what is unfair or detrimental, or not, must then be mediated against the competing claim for free expression. Facts: Applicant, Laugh It Off Promotions, occupies itself with the appropriation of brands through altering the images and words on trade marks and printing them onto T-shirts sold in order to make social comment. Respondent, South African Breweries International (Finance) B.V., is the holder and owner of the registered trade marks in issue. W. e. f. 31 December 1997, the respondent acquired ownership of three South African registered trade marks from a company known as Sabmark International Inc. They were CARLING BLACK LABEL trade marks in class 32, used extensively across South Africa in relation to beer sales. At the end of November 2001, the respondent came to know that the applicant had produced and was offering for sale to the public T-shirts, bearing a print markedly similar, in lettering, colour scheme and background, to that of the respondent’s CARLING BLACK LABEL trade marks, the only real difference being the wording e.g., the words ‘Black Label’ on the respondent’s registered trade marks were replaced, with ‘Black Labour’; ‘Carling Beer’ with ‘White Guilt etc.’ The marketing of the T-shirts with the offending marks took the form of advertising on the Internet. The High Court granted a restraint order to the respondent while concluding that the use of the marks by the applicant had manifested an intention to be hurtful or harmful as it was premised on race, ethnic or social origin and colour. Laugh It Off’s appeal to the SCA was dismissed on several grounds. Hence, this application. Decision and Reasoning: The purpose and scope of anti-dilution protection under section 34(1)(c) Section 34(1) (c) prohibits unauthorised use in the course of trade of a mark which is similar to a well-known registered trade mark if the use of the mark would be likely to take unfair advantage of, or be detrimental to the distinctiveness or repute of a registered trade mark. Provisions virtually identical in text and substance to it are found in Art. 5(2) of the European Directive and s. 10(3) of the 1994 UK Act. However, while these corresponding EC and UK provisions require proof of actual detriment or unfair advantage, s. 34(1) (c) requires a likelihood of unfair advantage or detriment. (Para 36) The section serves a vital purpose in preserving trade and commercial interests of owners of trade marks which have a reputation, by prohibiting use which, although may not confuse or deceive, would materially undermine the repute of well renowned trade marks ordinarily harnessed to sell goods and services. It aims at more than safeguarding a product’s “badge of origin” or its “source-denoting function”-striving to protect the unique identity and reputation of a registered trade mark. Both of these attributes underpin the economic value residing in the mark’s advertising prowess or selling power. (Para 40) The dilution of a trade mark appears to occur in two ways- by blurring or by tarnishment. Blurring occurs when the distinctive character or inherent uniqueness of the trade mark is weakened or reduced. Tarnishment occurs where unfavourable associations are created between a well-known registered trade mark and the mark of the unauthorised user. In a case of tarnishment, the object of the protection appears to be the repute, the good selling name of the mark. (Para 41) The SCA rightly found that the instant case was concerned, not with blurring, but with tarnishment of the CARLING BLACK LABEL marks. (Para 42) Anti-dilution protection and freedom of expression The SCA correctly recognised that a construction of the section was subject to the dictates of the Constitution and that its application must not unduly restrict a party’s freedom of expression. However, in deciding the merits of the infringement claim, it opted for a two-stage approach that appeared to be premised on the reasoning that one must first find an infringement under the section and only thereafter determine whether the infringement was excused by an assertion of freedom of expression. This approach was flawed. (Para 43) A finding of unfair use or likelihood of detriment to the repute of the marks hinged on whether the offending expression was protected under section 16(1) of the Constitution or not. If the expression was constitutionally protected, what was unfair or detrimental, or not, in the context of section 34(1) (c) had to be mediated against the competing claim for free expression (Para 44) The anti-dilution provision must bear a meaning which is the least destructive of other entrenched rights and in this case free expression rights. The reach of the statutory prohibition must be curtailed to the least intrusive means necessary to achieve the purpose of the section. (Para 48) The exercise calls for an evaluation of the importance of the purpose, nature, extent and impact of the limitation of free expression invoked against claims of unfair advantage or of likelihood of material detriment to a registered mark. In sum, in order to succeed the owner of the mark bears the onus to demonstrate likelihood of substantial harm or detriment which, seen within the context of the case, amounts to unfairness. (Para 50) Likelihood of detriment The mere fact that the expressive act may indeed stir discomfort in some and appear to be morally reprobate or unsavoury to others is not ordinarily indicative of a breach of section 34(1)(c). Such a moral or other censure is irrelevant if the expression enjoys protection under the Constitution. Freedom of expression may not be limited in a manner other than authorised by the Constitution itself. The constitutional guarantee of free expression is available to all under the sway of the Constitution, even where the expression may be deemed unsavoury, unwholesome or degrading. (Para 55) In a claim based on tarnishment of a trade mark, the probability of material detriment to the mark envisaged in the section must be restricted to economic and trade harm. (Para 56) There was not even the slightest suggestion that, from the time the T-shirts saw the light of day to the date the interdict proceedings were launched, there had been a real possibility of a reduction of its market dominance or compromised beer sales. Nor was there evidence of the likelihood of future commercial detriment. (Para 57) The claim of infringement of the respondent’s marks stood to be dismissed as no likelihood of economic prejudice had been established. Result: Application allowed. Case Name: Independent Newspapers Holdings Ltd and Others v Suliman Key words: defamation, right to privacy, dignity, public interest Country: South Africa Citation: 2005 (7) BCLR 641 (SCA) Court: Supreme Court of Appeal Date: 28/05/2004 Case N°: 49/2003 Importance: A person’s constitutional right to dignity and privacy may clash with other constitutional rights like freedom of the press, expression and receiving and imparting information. None of these rights are to be regarded as permanently overriding the others. They must be weighted according to the given situation. Facts: The appellants- all persons or entities involved in the publication of a newspaper, appealed to the Supreme Court of Appeal against a judgment of the Cape High Court awarding damages to Respondent for defamation. An article had been published together with the respondents photograph in a newspaper implying that the respondent was associated with Pagad. The article also alleged that the respondent was suspected by the police investigating the Planet Hollywood bombing of being implicated in the bombing because of an anonymous tip-off that he might be so implicated and was about to leave the country and that he had been arrested at the airport for that reason and had been detained overnight for questioning by the police investigating the bombing after being taken to the Parow police cells by the investigating officer. The article also pointed out that a police spokesman had said that while there was a possibility that the respondent might not have been involved in the bombing and there was no evidence pointing to that and that he had been stopped at the airport by the Aliens Control Unit after fault was found with one of the passports of a group of three travellers including Respondent. The appellants inter alia pleaded truth and public interest. Decision and Reasoning: Defamation/Injury to fama or reputation To say of a man that he had been arrested and detained in custody by the police for questioning as a suspect in the commission of a serious crime was defamatory. This is so even despite the accompanying statement that the police regarded him merely as a suspect due to an anonymous tip-off that he, a Pagad associate may be involved in the bombing and was about to leave the country, and that there was no evidence pointing to his involvement. Defamation is an injuria to one's fama or reputation. There is no doubt that some damage would be caused to the reputation of a person in the event that the public are told informed that a man was under arrest on suspicion of committing crime, even before the decision to charge him with a serious crime had been taken or he had appeared in court. To state such as would imperil the continued existence of a person's good reputation and cause people generally to doubt the integrity of that person even though they may not be certain the doubt was justified, would adversely affect to at least a certain degree his or her reputation. That the doubt might be temporary and ultimately transient because of the subsequently established innocence of the person concerned could not cure the loss of esteem which that person endured pending the establishment of his or her innocence. Public Benefit or Interest Even the fact that there is a legitimate public interest in a particular topic like crime prevention and apprehension of offenders does not mean that any information of any kind which was relevant to that topic might be published with impunity. While considering the question of public benefit or interest, a potential clash between the constitutionally entrenched rights may seem imminent: the rights to dignity and privacy on the one hand and the right of freedom of the press, of expression, and of receiving or imparting information, on the other. None of these rights should be regarded as permanently trumping the others. There never was a pre-ordained and never shifting order of priority to be assigned to each of them. The weight to be assigned to each of them in a given situation would vary according to the circumstances attending the situation. The question of balancing the conflicting rights to achieve equilibrium between them was a matter of ad hoc assessment of what weight should be assigned to the respective rights in the particular circumstances of the case and giving precedence and effect to the right which weighed most heavily in such a manner as would impair the countervailing right as little as reasonably possible. It was important to appreciate the distinction between a case such as this in which the two rights under consideration were both equally constitutionally entrenched rights and a case in which only one of the two rights was so entrenched. While in the former case, difficult questions of proportionality would arise, it is only in the latter that section 36(1) of the Constitution become relevant. A premature disclosure of the identity of a suspect could be so traumatic for and detrimental to the person concerned (when he or she might never be charged or appear in court and was, in fact, innocent) that greater weight should be assigned to the protection of the constitutional right to dignity and privacy and the common law right of reputation, than to the right of the press to freely impart information to the public. While the press were at liberty to inform the public of
what it was clearly in the public interest to know-that an unnamed suspect had
been arrested and questioned by the police in connection with the commission of
a crime- it was not in the public interest or for the public benefit that the
identity of a suspect be made known prematurely. Also, the seriousness of the
crime, alone, could not be the touchstone as to whether or not it was in the
public interest to prematurely name a suspect. There was a legitimate public
interest in knowing whether progress had been made in an investigation of a
serious crime by the police and whether arrests had been made; but the nature of
the crime did not necessarily create or heighten the need for the public to know
the identity of any suspects that the police might decide to question. It would
be different were the suspect a person with a high public profile, or the holder
of a public office. Result: Marais JA, Scott & Mthiyane JJA concurring found that Respondent had been defamed and therefore entitled to an award of damages. The amount of the award required reassessment (appeal upheld to that extent) Nugent JA (Ponnan AJA concurring) agreed with the order in separate judgement for different reasons. Case Name: NM, SM and LH v Charlene Smith and Ors. Key words: privacy, dignity, publication, HIV status Country: South Africa Citation: WLD 2005-05-13, Case no 02/24948/2005. Court: High Court of South Africa (Witwatersrand Local Division) Date: 13 June 2005 Case N°: 02/24948 Importance: Common law and the Constitution protect a person’s right to privacy, dignity, integrity and mental and intellectual well being. An invasion of this bundle of rights is prima facie unlawful. Facts: Plaintiffs, NM, SH and LH were diagnosed as being HIV positive. This action was instituted in December 2002 in which each of the Plaintiffs sought joint and several judgment against the three Defendants for payment of damages and related relief arising out of an alleged breach of their rights to privacy, dignity, psychological integrity and mental and intellectual well being. The cause of action was based on a biography of the Second Defendant, written by the First Defendant and published by the Third Defendant in March 2002, in which it was alleged that without the plaintiffs consent, the Defendants had disclosed their names and HIV status. Decision and Reasoning: A person is entitled to decide when and under what conditions private facts may be made public. A contrary view will place undue constraints upon the individual’s so-called ‘absolute rights of personality.’ It will also mean that rights of personality are of a lower order than real or personal rights. These can be limited conditionally or unconditionally and irrespective of motive.” (Para 37) The Defendants Liability to the Plaintiffs for damages The decisive factors in this part of the inquiry were that the disclosure of the Plaintiffs names and status was contained, in what was to all intents and purposes, the report of an official inquiry, commissioned by a public body into a matter of public interest. There was nothing in the report, or the covering letter enclosing a copy of it, to suggest that any part of it, and particularly the Plaintiffs names and status, was confidential. That the actual consents were not attached to the report did not impose a legal duty on the Defendants to obtain copies of the consents. There was no requirement on the part of any of the Defendants to obtain independent corroboration of any of the facts in the report and, in particular, no requirement that they obtained copies of the consents signed by the Plaintiffs. To recognise or impose such a duty on the Defendants would place an intolerable burden on journalists and, in this case, the author of a biography. (Para 40.2) Therefore, when the book was published, the publication of the Plaintiffs names and HIV status was not accompanied by any intention to injure, i.e. there was no animus injuriandi. (Para 40.3) Authorisation of disclosure of names or status The Plaintiffs, did not, in fact authorise the disclosure of their names or status. It was found that no liability attached to the Defendants out of the publication of the book in March 2002 in which private facts were disclosed. However, absent a waiver, the Plaintiffs had since end of April 2002, a continuing right to “determine the destiny of private facts” and to “dictate the ambit of disclosure”. (Para 42) From the end of April 2002, the Third Defendant had known that all sales and deliveries of unexpurgated copies of the book were in breach of the Plaintiffs right to protect the privacy of their names and HIV status and was liable for the damages that the Plaintiffs had suffered as a result. (Para 44.2, 52) On the assumption that a publisher achieves the largest volume of sales of a book at the time of or shortly after its launch, it was safely concluded that an unknown, but considerable, number of books disclosing the Plaintiffs private facts had been sold from the end of April 2002 to date. The damages to which the Plaintiffs were entitled thus flowed from the unknown number of “unauthorised” copies of the book sold by the Third Defendant over the past three years. (Para 45) Due to the ignorance and prejudices of large sections of the population, an unauthorised disclosure of HIV status could result in social and economic ostracism, and even mental and physical assault. That unauthorised disclosure increased mental stress had been recognised by the Courts. These facts were relevant to the assessment of the damages to be awarded to the Plaintiffs. (Para 46.3 & 46.4) Assessment of Plaintiff’s Damages The Court dealt with the initial effect of the disclosure on the Plaintiffs as well as the fear of future disclosures with which they have had to live and would continue to have to live with. (Para 48) Since the meeting on the First Plaintiff with Dr Botes, no person had confronted them with the fact that their names and HIV status were disclosed in the book. This was relevant to the likelihood of there being any confrontation in the future. This likelihood would be further reduced by the order for the deletion, from the unsold copies of the book, the reference to the Plaintiffs names. Both of these facts were particularly material to the damages to be awarded for the breach of the Plaintiffs right to privacy. (Para 51.2) Another fact that would necessarily reduce the likelihood of further disclosure was that biographies, especially those about politicians, were directed at and read by a limited number of people. This limited readership was unlikely to include people with whom the Plaintiffs came or might likely come into regular contact with. (Para 51.3) Result: Plaintiffs claims as to First and Second Defendant dismissed with costs. Third Defendant to pay Plaintiffs costs and directed to delete, from all copies of the book “Patricia De Lille” in its possession, the reference to the Plaintiffs names.
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