Right to privacy does not extend to racism

Are there any private parts?

Publication July 13, 2016

There is a curiously specific provision in the constitutional right to privacy. Everyone has the right not to have the privacy of their communications infringed.

The law of privacy has a long history in South Africa going back to Roman times. If in ancient Rome you broke the seal of someone’s will and read it while they were still alive it was considered to be a blatant incursion into the privacy of that person and an actionable insult. Roman law writers considered that secrets in private letters were inviolable. Pompeius, a friend of Cicero, after the victory of his party in Rome caused all the letters of his opponents that had fallen into his hands to be burnt unopened. The Roman Dutch writer Grotius, writing in 1667, considered the reading of private letters to be a breach of our natural law right to speak confidentially with absent friends. Natural law dictates what things are in their very nature honourable or dishonourable.

Despite having had a Bill of Rights since 1789, the USA only developed privacy sanctions in the mid-20th Century in the wake of the tapping of private telephone conversations. In 1890 eminent future US supreme court justices Warren and Brandeis in a famous article said “gossip is no longer a resource of the idle and the vicious, but has become a trade, which is pursued with industry as well as effrontery”. Privacy, they said, had become more essential to the individual but modern enterprise and invention had invaded privacy in a manner which sometimes caused more pain and distress than bodily harm.

In the age of social media the idle and the vicious have powerful tools at hand and it is impossible for anyone to escape public attention. It is a truism that the right to privacy, like any other right, it not an absolute right. The law will only protect your privacy to the extent that what you do or say is reasonable in the eyes of the community. In your inner sanctum you may be able to preserve some privacy but as soon as you go out into the world of communal relationships that protection is no longer absolute. The courts will not let you complain about an invasion of your privacy if what you do or say is objectively unreasonable according to the general standards of society infused by the values in the Constitution. That explains why, no matter who you are, you will bear the consequences of expressing intolerable views such as racism. I do not think that criminalising the expression of intolerable views is the answer. The courts are not appropriate or efficient forums for judging social issues. It also narrows the isms that should be seen as intolerable. The basic value of dignity in the Bill of Rights and the public outcry when this value is breached will bring its own public justice. But let’s make sure we don’t bring everything down to the level of the idle and vicious.

One thing is certain. If you express intolerable views no-one is going to burn your letters.

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