Is disclosing someone's HIV status defamation? Court clarifies the distinction

The question of whether disclosing another person’s HIV status publicly constitutes either defamation or breach of privacy came under the judicial spotlight, with a court declaring they are independent and distinct actions that must be pleaded separately.

This comes after a member of the Union of Metal Workers of South Africa (Numsa), during a public meeting, mentioned that one of its members is HIV-positive. The woman, only identified as K, was emotionally traumatised by this.

She instituted a damages claim against the union and its member, who had divulged her status, claiming that his disclosure was defamatory of her.

The Bloemfontein High Court earlier ruled in her favour and ordered Numsa to pay her R100,000 in damages.

Numsa subsequently appealed the finding, and the High Court found in its favour.

Acting Judge HE De La Rey found that defamation and a breach of privacy are two separate issues. The offending disclosure, the judge stated, was categorised as a breach of privacy, which was not included in K’s original case.

The court was told that during a grievance meeting held at the office of Numsa, one of the union leaders, in front of approximately 14 members, told the meeting that someone had told him K is HIV-positive and that he had never told anyone.

The primary purpose of the grievance meeting was, among other things, to discuss confidentiality issues at work.

Before making the statement, the union leader warned the members in attendance that what he was about to say was going to cause commotion among them.

He then proceeded to make her HIV status publicly known. This was done without her consent and without any prior knowledge by her that he was about to do it.

The disclosure of K’s status had upset the meeting, and it had to be adjourned for a while because she felt hurt and betrayed and became emotional. The union leader, meanwhile, apologised afterwards, but she still felt hurt and stressed and had to consult a psychologist to cope.

K told the court that she understood the statement to mean that she was a sick person and that she may infect others and could not do her duties.

From his evidence, it appears that the union leader, in a bid to prove that he was able to keep the members' personal medical information a secret, accidentally revealed K’s health status.

In his defence, he said her HIV status was common knowledge and he never had the intention to defame her.

Judge De La Rey referred to a similar issue in which another court commented that living with HIV/Aids should not be viewed as a violation of one’s dignity.

But that court concluded that it is an affront to the infected person’s dignity for another person to disclose details about that person’s HIV status or any other private medical information without his or her consent.

Judge De La Rey said the clear conclusion from that case is that the publication of K’s personal information is not defamatory.

“In dealing with cases concerning people living with HIV/Aids, courts and lawyers must take care not to develop rules that will strengthen rather than diminish the stigma attached to HIV/Aids.” 

The judge expressed the hope that, in time, those living with HIV/Aids should be seen merely as members of our community who have a disease for which treatment exists.

In finding that the disclosure was not defamatory, the judge overturned the R100,000 in damages awarded to K.

zelda.venter@inl.co.za