The Legal Protection of Privacy in South Africa: A Transplantable Hybrid

Jonathan Burchell


South African and Scottish principles of delict or tort, founded on the Roman actio iniuriarum, have the potential of locating individual privacy within a general protection of dignity (or dignitas). English tort law, currently relying on an analogy with a developed remedy for breach of confidence, may in future lean more heavily on the concept of privacy in Article 8 of the European Convention on Human Rights. The author of this article tracks the development of the South African concept of privacy in judgments from 1954 to recent Constitutional Court jurisprudence, including the emergence of legislative definitions of ‘informational’ privacy in South Africa. The focus is on the identification of a clear personality right to privacy, recognition of the need for a well-defined action for damages for invasion of privacy, bounded by realistic objective limits and defences, and the importance of synergy between Constitutional and case-based definitions of privacy. It is argued that the South African, Roman-based action for damages for invasion of privacy—a private-law and public-law hybrid—may be directly transplantable onto Scottish soil and may also provide indirect inspiration for the development of an English concept of ‘privacy’ that is ultimately wider than confidentiality, but which adequately accommodates free expression.



Cite as: Jonathan Burchell, The Legal Protection of Privacy in South Africa: A Transplantable Hybrid, vol 13.1 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (March 2009), <http://www.ejcl.org/131/art131-2.pdf>.

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