The recent lawsuit brought about by former US President Donald Trump against his niece, Mary Trump, and the New York Times, for leaking his tax records, has brought to light the question of whether journalists can publish information that has been stolen from a source. In South Africa, a similar controversy has arisen in the wake of an exposé published by amaBhungane Centre for Investigative Journalism, which implicated Zunaid Moti in a mining deal with Zimbabwe’s President Emmerson Mnangagwa. Moti claims that the journalists used stolen documents. However, according to South African law, journalists can publish such information if it is in the public interest.
In the US, Judge Robert Reed of the Supreme Court of the State of New York dismissed Trump’s case, stating that the Times’ purpose in reporting on a story of high public interest constitutes justification as a matter of law. This means that freedom of speech protected by the US constitution trumped the unlawfulness of the confidentiality breach. However, Trump’s case against his niece is ongoing.
In South Africa, the right to freedom of expression and media freedom are protected under the Constitution. However, the publication of unlawfully obtained material should be weighed against the overriding public interest to justify its use. The case of Financial Mail in 1990 obtained information about private business discussions between Sage Holdings and the Allied Group through unlawfully recorded private telephone conversations. The court eventually confirmed the interdict, warning the media not to confuse public interest with interesting topics and to balance privacy with public interest.
The leaked documents published by amaBhungane implicate Zunaid Moti and President of Zimbabwe, Emmerson Mnangagwa, in a business deal. Moti claims that the documents were obtained by a former employee of the Moti Group. If the information in the documents reveals deals that are morally or legally questionable, then it is likely that the overriding public interest test will be met, and the court may permit the publication of the information.
In conclusion, South African law protects the publication of unlawfully obtained documents if the public interest is sufficient, but journalists must be aware of the difference between public interest and interesting topics and balance privacy with public interest.
Jacques Louw, a media law attorney, believes that South African law should stand firm in protecting the publication of unlawfully obtained material, provided there is sufficient public interest without infringing on privacy rights.
Disclaimer: Jacques Louw is both an attorney specializing in media law and GroundUp’s lawyer.
