Privacy: Overrated when you have nothing to hide but useful when you do

In his heyday, American Pastor Ted Haggard said to his packed congregation that when you open a newspaper, you’ll always find somebody’s secret. This was, of course, before the alleged revelation of drugs and a male escort. I’m sure then he would have liked some privacy.

Here in South Africa, privacy is so well established that it was the only path to legal cannabis use after all other avenues were exhausted and failed.

But where does it come from? Sure, we all like it but I’m pretty sure we’d also like cheaper electricity, free transport and unlimited data, though that’s not happening. Just liking something and wanting it is not enough to turn it into law.

Section 14 of the Constitution affords us this right in rather broad terms, laying out specific inclusions but not setting any limitations. Privacy is generally regarded as a personality right lumped in under dignity, along with reputation and identity (not expressed directly but considered factors of dignity). The concept actually has a haphazard history in developing out of protecting the “decencies of life” back in 1954 when a prominent Cape radio presenter partook in a photoshoot for an article but one photograph was used in an advertisement. Over time, this current concept of privacy was developed.

So given the audio recording of Mayor Stevens Mokgalapa, against his knowledge and against the backdrop of the genesis of privacy in South Africa, his privacy rights should extend to protect him against anything he says in closed quarters.

However, of late, the right to privacy has been altered. One may be tempted to claim it has been diluted, but that would be incorrect. Privacy has never been so strong, in any case, that it can be said to be weaker in its current state. What would be more correct would be to claim that it’s been mixed in with other things now.

Think of mixing a tot of whisky with a tot of brandy. The alcohol content would remain as strong though the resulting mix will be something less palatable than the separate sum of its parts.

We give away stacks of our privacy through RICA every time we get a new SIM card, but we gain privacy through legislation such as the Protection of Personal Information Act. Distribution of pornographic material against the will of the subject is now illegal but police are allowed to search my car if they have reasonable suspicion that I may be party to a crime despite the Constitution explicitly stating that everyone “has the right to privacy, which includes the right not to have … their property searched”.

Balancing privacy against protections and other rights is a tough legal gig and one that few are able to get spot on.

Getting back to Mayor Mokgalapa, it’s unlikely that privacy law will do the trick for him right about now. Like most legal protections, privacy can’t operate retrospectively to undo damage. So we should ask ourselves, was privacy ever on the cards in the first place? He’s a public figure, allegedly speaking about other public figures and even having sex with a subordinate. Legal practitioners the country over will give you the standard, “we must differentiate what is in the public interest against what the public finds interesting”. I’ve always found that line to be condescending and difficult to gauge, since there’s little scope to define the boundaries of public interest.

There is another powerful document to skirt privacy and one that is rarely checked, RICA. In fact, before it begins telling us about registering SIM cards, it tells us that we may “intercept” communication that we are either party to or with the permission of a party to that communication.

The term “intercept” is important because, while it includes recording, it is not limited to just that, so you can disseminate information, according to the definition. More accurately, it’s actually defined as, “the aural or other acquisition of the contents of any communication through the use of any means, including an interception device, so as to make some or all of the contents of a communication available to a person other than the sender or recipient or intended recipient of that communication…”

Sections 5, 6, 7 and 8 list additional grounds in which you can intercept communication, but the important one here is 6; namely, in the course of usual business. This may be broad enough to at least make a case.

But then section 42 comes in with some limitation:

“No person may disclose any information which he or she obtained in the exercising of his or her powers or the performance of his or her duties in terms of this Act, except—…”

So the Act allows you to intercept and seemingly later takes that power away.

All in all, its rather confusing but, if anything, Mayor Mokgalapa may be giving us the opportunity to set this all straight. This would be the perfect case to properly define the RICA empowerments or at least set useful boundaries/criteria for what constitutes public interest.

Personally, I don’t think a RICA challenge will hold on the part of those who bugged him, but I would love for the reasons to come out as to why, because from my perspective, privacy is an overrated right among those who have nothing to hide, but is very useful to those who do.

I would love for a court to tell us why we have it and in what way we should keep it. More importantly, I’d love to hear Mayor Mokgalapa tell us, in the pedestrian eloquence of that 29-minute recording, why he should be protected by law to be allowed to hide his thoughts about his colleagues when he’s willing to share them with someone else.

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