Invasion of privacy is defined as “the wrongful and intentional interference with another’s right to seclusion.” The right to privacy refers to the most personal aspects of a person’s existence such as person’s family life, sexual preference and home environment. There are three requirements that constitute an invasion of privacy: a factual violation of the right to privacy, wrongfulness, and intention. In terms of a factual violation of privacy, this can take two forms. The first form is intrusion, and this is essentially placing yourself in a situation or place where you are not welcome and usually involves the perpetrator becoming aware of information about the victim without the victim’s knowledge. An example of this would be wrongfully entering someone’s house, eavesdropping, or using surveillance such as listening devices.
The second form is that of disclosures. Disclosures are defined as “when one person publicises known private facts about another person who is unaware that they are being published.” This includes a newspaper publishing photographs of someone without their permission, or publishing people’s private matters that would cause distress should they be published. Examples of such private matters include publishing someone’s HIV status (health and medical affairs), financial affairs, sexual life, family life, and contents of private correspondence.
As a claim for invasion of privacy falls under the actio iniuriarum in the private law of delict, the usual defences against the element of wrongfulness will apply. Without wrongfulness, there can be no claim invasion of privacy. The first such defence is that of public interest. Where there is an overriding public interest, the publication (or disclosure) will be justified and thus not wrongful. An example of this how a politician’s health records may be published if the politician is unfit to hold office as a result of mental illness, incapacity, or mind altering/inhibiting drugs such as alcohol.
The second defence is similar to the first and is that of public figures. Public figures are people who by the nature of their work, profession, mode of living, or accomplishments have forfeited their right to privacy to a certain extent as a result of the fame they have acquired (which gives the public a legitimate interest in their affairs). An example of this is how a politician’s financial records may be published if the source of his/her income is dubious. The final and perhaps the most total defence is that of consent. If the person consented to their affairs or private information being published, the publication cannot be wrongful. An example of this is if someone who is HIV positive consents to being identified as such. Another defence is if media houses can prove that the publication of the private information was negligent and the fault was thus in the form of culpa (negligence) and not intention as the law has yet to extend an action for invasion of privacy to negligence.