In Financial Mail (Pty) Ltd v Sage Holdings Ltd, the Court extended personality rights to a corporation in 1993. This judgment was a significant development in our law and underpins POPIA’s requirement that responsible parties protect the personal information of juristic persons, not just natural persons. The judgment also paves the way for AI and robots to be recognised as artificial persons in South Africa and to have personality rights.
In 1993, the then Chief Justice of South Africa wrote in this judgment that “a university and an artificial person, would in appropriate circumstances … enjoy a right to privacy”.
Who should care about this judgment and why?
- All responsible parties because this judgment lays a foundation for protecting the privacy of juristic persons.
- Artificial intelligence and robot creators because their creations can have personality rights.
- All media houses because they must obtain information lawfully and ensure content does not contain defamatory material.
- All corporations because they have the right to protect their business from reputational harm.
What could you do about it?
- Comply with privacy and data protection laws by joining a programme.
- Learn more about robotics law by reading our post.
- Learn about the media and its responsibility to protect personal information by reading our post.
- Train journalists and other writers on what the law, codes, and policies require them to do by asking Michalsons to run private workshops for you.
- Dive into the details by reading the full judgment.
- Access other relevant judgments by joining a Michalsons programme.
Our insights on the judgment
The judgment is a significant legal development that fundamentally impacts corporations and juristic persons. The right to privacy is an independent personality right under the common law. It is also a fundamental right in the Bill of Rights. When dealing with personality rights, such as defamation, the courts have treated natural and legal persons similarly. With personality rights, corporations and juristic persons have a right to privacy.
Robotics is an emerging field of law
As the only country in the world to afford personality rights to a corporation, this judgment lays a foundation for robots to have privacy rights. Robotics law is a specialised field that still needs a sound legal framework to address matters related to this legal entity known as juristic persons.
Responsible publishing by media
Journalists naturally gather a lot of information to compile a story. With evolving data protection laws, the media must not only protect information but also process it responsibly. While the media has a right to freedom of expression, this judgment cautions it to use information responsibly. The media must source information legally and without infringing anyone’s right to privacy.
Digest
Sage tried to prevent Financial Mail from publishing a defamatory article containing confidential information about Sage’s business activities. Parts of the article contained information from confidential sources and the rest was from telephone conversation recordings. An unauthorised eavesdropping device installed in Sage’s basement recorded the telephone conversations.
It is unlawful for a company to publish any information it sources through an invasion of someone’s privacy. There are exceptions to this general statement. For example, the Court may allow a company to publish the information if it is in the public interest. There are three factors to this exception:
- There is a difference between what is interesting to the public and what it is in the public interest to make known.
- The media have their own private interest in publishing what appeals to the public as it may increase their circulation or the numbers of their viewers or listeners.
- There is a public interest in preserving confidentiality about private affairs and in discouraging leaking confidential information, unlawfully obtained, to the media and others.
The invasion of the right to privacy
The Court considered the confidential documents and the tape recordings collectively. They contain sensitive and confidential information concerning Sage’s internal affairs and business negotiations. Financial Mail could not explain why the public should know about Sage’s activities. They also could not explain why the Court should allow them to use sensitive information about Sage and its financial affairs in a defamatory article.
One of the companies mentioned in the confidential document did not give any permission to disclose the information to third parties. Financial Mail’s possession of the information became unlawful because it had no permission to use it. The Court held that publishing this information would infringe Sage’s right to privacy and that it is not in the public interest to publish the article.
The Court held that although a company has no ‘feelings’ of outrage, defamatory statements could damage its reputation in the business and its involvement in other activities. Therefore, Sage won the right to protect its business from the invasion of its right to privacy because of the harm its business could suffer.
Order
- The Court prohibited Financial Mail from publishing the article.
Details of Financial Mail (Pty) Ltd v Sage Holdings Ltd
- Universal citation: [1993] ZASCA 3
- Also reported at 1993 (2) SA 451 (AD); [1993] 2 All SA 109 (A)
- Full name: Financial Mail (Pty) Ltd & Others v Sage Holdings Ltd & Another
Please note: The summary of this judgment is not intended for a general audience. It is drafted specifically for members of the Michalsons Data Protection programme.
