Legal explainer: Did Karyn Maughan have the right to publish Jacob Zuma’s medical records?

Is Zuma’s medical records off limits or fair game?

Maughan, a senior legal journalist at News24, and state prosecutor Billy Downer are facing criminal charges. 

Zuma, who has launched a private prosecution against the two, is accusing Downer of sharing his confidential medical records with Maughan.

This in spite of the fact that the records became a public document after his lawyers submitted it to the court.

The alleged unlawful disclosure of the information emanated from Zuma’s trial for corruption, fraud, and racketeering in relation to the 1999 arms deal case. 

The state issued subpoenas for Zuma’s medical records to demonstrate that Zuma’s physical absence from the court is unjustified. 

The matter is still before the High Court in Pietermaritzburg. 

The law that regulates the disclosure of confidential medical information  

The right to privacy and dignity, and press freedom are protected by the Constitution. The National Health Act and Protection of Personal Information Act (POPIA) also regulate the disclosure of confidential medical information. 

Director of Data Privacy and Cybercrime at Werkmans, Ahmore Burger-Smidt says the National Health Act makes it clear that the medical records of a person are private and confidential. 

“As such, any acquisition or sharing of information relating to a person’s medical records, in principle, constitutes an infringement of the right to privacy.” 

The Western Cape High Court also dealt with the matter in Tshabalala-Msimang v Makhanya in 2018. 

The late former Health Minister Manto Tshabalala-Msimang, who had undergone a liver transplant, had sought to prevent journalists from publishing her medical records following allegations that they obtained it through dubious means. 

On face value, journalists had contravened the National Health Act and violated her right to privacy. 

ALSO READ: Zuma to prosecute Downer, Karyn Maughan for 'leaking' personal information

However, the court held that it was ‘in the public interest’ for them to comment on and publish the information. 

 The ‘public interest’ argument through the lens of the Tshabalala-Msimang-judgment  

 The prohibition on the disclosure of confidential medical information can be overridden by public interest. 

Public interest depends on the nature of the information conveyed and the situation of the parties involved. 

Therefore, disclosure of private facts must be established on a case-by-case basis. 

The court held in paragraph 34 that:   

“In a case where the information sought for publication is obtained by unlawful means, there may well be overriding considerations of public interest which would permit publication.” 

 Was the information confidential/ private and were they wrongfully published? 

News24 contends that Zuma’s medical records were already in the public domain as they formed part of pleadings that were submitted as court documents. 

Private facts have been defined as those matters the disclosure of which will cause mental distress and injury to anyone possessed of ordinary feelings and intelligence in the same circumstances and in respect of which there is a will to keep them private. 

ALSO READ: Zuma prosecution of journalist ‘threat to media freedom’ - SANEF

The Constitutional Court ventilated this matter in NM and Others v Smith and Others after the names of three women who are HIV positive were disclosed in a biography of Patricia de Lille and authored by Charlene Smith. 

They alleged that their names had been published in the book without their prior consent having been obtained – despite the information being in the public domain. 

The apex court declared the disclosure unlawful, ruling that the ‘public interest’-argument had not been triggered. 

Any justification for the disclosure of Zuma’s medical information in terms of POPIA? 

Zuma’s status as a former statesman has no bearing on the disclosure of his medical records. However, section 7 of POPIA provides for exclusions when processing or publishing for journalistic, literary, or artistic purposes. 

The aim of the provision is to balance the constitutional rights to the right to privacy and the right to freedom of expression including free press. 

The provision flowed from the Tshabalala-Msimang judgment, which held that the public has the right o be informed of current news and events concerning the lives of public persons such as politicians and public officials. 

“The public has the right to be informed not only on matters which have a direct effect on life, such as legislative enactments, and financial policy. This right may in appropriate circumstances extend to information about public figures,” the court held. 

The country’s courts have been reluctant to impose a form of censorship on the free flow of information. 

In 2021, Pietermaritzburg High Court Judge Piet Koen questioned the basis Zuma's complaint against Downer, saying he does not believe the alleged leaking constitutes “an actionable violation” of his rights to privacy.

Maughan and Downer will present their arguments in court in October after the National Prosecuting Authority (NPA) in KwaZulu-Natal declined to prosecute. 

The NPA has since thrown its weight behind Downer adding that Downer will continue to lead the prosecution of Zuma. 

*This article was updated on 8 September 2022, to reflect the fact that Maughan did not publish details of Zuma's medical records, but details from a letter disclosed by Zuma's lawyers to the state. The 2021 ruling by Judge Piet Koen was added for further context.