Caster Semenya, the newly crowned 800m world champion, entered the international spotlight when an Australian newspaper, the Daily Telegraph, sensationally claimed that testing by sports administrators had shown she was a hermaphrodite.

The claims, which were based on a confidential source close to the testing process, were then covered by the South African media in the form of news reports, as well as commentary.

The saga gives rise to interesting legal questions about the conduct of the media in prematurely reporting the alleged results of confidential tests conducted by the International Association of Athletics Federations (IAAF).

A starting point is to ask whether, if a South African newspaper had obtained the results, it would have been within its free speech rights to publish them.

The test in our law is whether Semenya has a reasonable expectation of privacy in relation to the results of the IAAF's tests. The information about Semenya clearly passes this test.

Our courts have dealt with many cases of sensitive medical information, and have been at pains to point out that such information lies at the core of an individual's right to privacy and dignity. In general, individuals are therefore entitled to tell the public to mind their own business when it comes to such matters.

For instance, in NM v Smith, the Constitutional Court held that the publication of the plaintiffs' HIV status in a biography of Patricia de Lille amounted to the wrongful publication of private facts.

And in the famous case involving the former health minister Manto Tshabalala-Msimang v Makhanya, Judge Mohamed Jajbhay stated unequivocally that the medical records of a person are private and confidential. Indeed the National Health Act buttresses this protection.

The House of Lords in the UK recently alluded to the issue of the privacy of one's sex in A v Chief Constable of West Yorkshire Police.

The chief constable had rejected Ms A's application to become a constable of the police force on the ground that, as a male-to-female transsexual, she could not perform the full body-searching duties required of a constable in terms of British legislation.

The House held that the chief constable had unfairly discriminated against Ms A. The judges also endorsed the decision of the employment tribunal in the case to protect Ms A's identity: she had feared that "disclosure might lead to unwarranted attention affecting her private and personal life". Apart from the common law, legislation has been proposed here that makes it plain that a person's sex is "personal information". Once the Protection of Personal Information Bill becomes law, an intersex person will be entitled to seek redress for any unlawful disclosure of private information relating to their sex.

So the hypothetical South African publisher that publishes details of Semenya's IAAF test results prematurely would have been treading on risky territory. The only possible answer to such a case, both in the courts and before the Press Ombudsman, would be that the publication was justified in the public interest. While disclosure of the test results by the IAAF to certain regulatory bodies who need to know the information is defensible (and Semenya would be taken to have consented to such limited publication by virtue of her participation in the sport), there can be no public-interest justification for parading Semenya's test results in public, at least before the official press release. The case is a far cry from one in which the media aims to expose hypocrisy. For instance, the Sunday Times in the Tshabalala-Msimang v Makhanya case succeeded in fending off an application by the minister to prevent the paper from publishing details of her medical records because the information was "relevant to the ... performance of her constitutional and ministerial duties".

In Semenya's case, claims of public interest ring hollow. The balancing act here is between the dignity right of Semenya - the right to be treated with respect - and the public's entitlement to know the information. The balance clearly favours Semenya.

What this should teach the media is that a person's dignity and privacy should not be trampled on without an overriding public interest in such a disclosure.

Published in the Daily News on 18 September 2009

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