It is easy to understand why privacy and defamation often become tangled in public discourse and even in litigation. Both involve publishing information about a person. Both can cause deep personal harm, provoking humiliation, anger and a profound sense of invasion. Both impinge on the right to dignity. When someone's medical condition or private affairs are revealed without consent, the instinctive response is often to say that they have been "defamed."

The harm feels reputational because dignity is affected, and in everyday South African usage, the term defamation is used for any hurtful disclosure. Yet the law protects different interests through different causes of action. Defamation protects reputation, how the world sees you. Privacy protects autonomy and control over one's personal information, and one’s ability to live life free from intrusions into private space.

They are not interchangeable. The recent judgment of the High Court in National Union of Metal Workers of South Africa (NUMSA) and Others, v B, shows why keeping these actions distinct is essential to the success of a claim.

The case arose from a grievance meeting held at NUMSA's offices attended by approximately 14 members. Ironically, the purpose of the grievance meeting was to discuss workplace confidentiality. During the meeting, and after warning the members that what he was about to say would cause commotion, the second appellant, Zitho, disclosed that another member had told him the respondent was HIV positive and that he had never told anyone.

This disclosure was made without her consent and without prior warning to her. The disclosure disrupted the meeting, which had to be adjourned when B became visibly distressed, expressing that she felt hurt and betrayed. She later sought support from a psychologist to cope with the impact of the incident. B understood the statement to imply that she was unwell, posed a risk of infecting others and was incapable of performing her duties.

She subsequently instituted action proceedings for defamation, pleading that the statement was understood by both herself and her colleagues to mean that she was a sick person, might infect others or could not perform her duties. The court a quo upheld B's claim and granted damages of R100 000. On appeal, however, the Full Court of the Free State Division held that the publication of B's HIV status and the words uttered by Zitho could not be regarded as defamatory, and that the plaintiff's decision to base her claim on defamation, rather than on the breach of her privacy, was fatal to the action.

The Full Court's reasoning goes to the crux of the distinction. A defamation claim requires the wrongful, intentional publication of a defamatory statement concerning a plaintiff; meaning that reasonable people will tend to think less of you because of the disclosure. The court relied on the Constitutional Court's decision in NM v Smith, which held that there is nothing shameful about suffering from HIV/AIDS, but that disclosing such information without consent it is an affront to the infected person's dignity.

The Full Court concluded the fact that B is HIV positive, and the publication of this personal information cannot be defamatory, noting that holding otherwise would negate the essence of the finding in NM. NM confirms that the right to privacy is an independent personality right, the infringement of which may itself give rise to a separate cause of action. The wrongful act lay in the unauthorised disclosure of sensitive medical information, not in a statement that legally diminished the respondent's standing in the community.

The difficulty at first instance was that the trial court conflated these distinct causes of action. It held that disclosing the plaintiff's HIV status in a meeting of fourteen people amounted to public defaming of her privacy, dignity and reputation. The court further found that Zitho's disclosure constituted a wrongful act that defamed the plaintiff and violated her right to privacy and her personal information.

However, privacy cannot be the subject of defamation, and defamation cannot be expanded to include privacy violations simply because both may cause emotional harm or implicate dignity. The Full Court reaffirmed that an action based on defamation, and one based on a breach of privacy, although both based on the actio iniuriarum, remain independent and distinct actions that must be pleaded separately.

The Full Court held that the court a quo misconstrued the nature of the claim based on defamation by disregarding the fact that an action based on breach of privacy is an independent action and cannot be conflated with an action based on defamation. Because the plaintiff's claim was not based on the breach of her right to privacy in relation to her HIV status, and because the disclosure was not defamatory in its nature or effect, the claim had to fail.

This leaves a difficult truth. A woman whose privacy was clearly violated received no remedy, not because her harm was insignificant, but because the incorrect cause of action was pursued. This case is a reminder that accuracy in pleading is not a technicality but a substantive element of justice. As the Full Court noted, the purpose of pleadings is to define the issues for the other party and the court, and it is for the court to adjudicate upon the disputes and those disputes alone. When privacy and defamation are conflated, deserving litigants may lose meritorious claims, courts may inadvertently reinforce outdated assumptions, and the law may fail to safeguard dignity in a coherent manner.

The decision in NUMSA v B brings welcome clarity. Privacy protects the right to decide when and to whom personal information is disclosed. Defamation protects reputation. They sit close to one another within the actio iniuriarum, which protects the rights entrenched in sections 10 (human dignity), 12 (freedom and security) and 14 (privacy) of the Constitution, but they remain distinct paths. In a society still addressing the legacy of HIV-related stigma, and where personal information is easily exposed, naming the harm correctly is the first step towards effective protection of dignity. This judgment illustrates that with precision.

How, then, does one choose the correct claim? NUMSA v B directs us to look at the nature of the harm. A privacy claim centres on intrusion into one's personal sphere, dignity or confidentiality. In South African common law, the right to privacy is recognised as an independent personality right which the courts have included within the concept of dignitas.

Privacy is an individual's condition of life characterised by seclusion from the public and publicity. Breach of privacy could occur either by an unlawful intrusion upon the personal privacy of another, or by unlawful disclosure of private facts about a person. Privacy focuses on the wrongful exposure itself. Truth is no defence. By contrast, the question in a defamation claim is how the statement affects the plaintiff in the eyes of others. Publication to a third party is essential, and truth and public interest can operate as a defence, because the injury lies not in disclosure but in being misrepresented or discredited. Ultimately, a claim succeeds only when the correct cause of action is brought to vindicate the right infringed.

Written by Odwa Abraham, Senior Associate & Lamiah Casoo, Candidate at Webber Wentzel​