The Constitutional Court handed down a judgment in the case of NM and Others v Smith and Others, in which three HIV-positive women claimed that their right to privacy and dignity were violated by the publication of their names and HIV status in a biography of politician Patricia de Lille. The Court found in favour of the applicants, ordering the respondents to pay each applicant R35 000 in damages. In a majority judgment, Madala J held that the respondents were aware that the applicants had not given their express consent but had gone ahead and published their names, violating their privacy and dignity rights.

In light of the fact that the judgment did not extend the common law to include negligence in relation to the publication of private medical facts, there would be no chilling effect on freedom of expression and therefore the Court did not find it necessary to either agree or disagree with the FXI on this point. The FXI therefore welcomes this preservation of the common law status quo, which protects both media and individual defendants who unwittingly, but mistakenly, infringe the privacy of individuals in speech or in writing.

The FXI successfully applied to be admitted as amicus curiae in this case. The FXI argued that if the media were to be held liable for the negligent disclosure of private facts they would bear an intolerable burden that would unnecessarily and unjustifiably interfere with, and have a chilling effect on, the right to freedom of expression in South Africa. The FXI argued further it was neither necessary nor desirable for the common law to be developed to include negligence as a ground for fault in these situations, more especially because individual defendants would be particularly at risk of being held liable if this development took place, because they do not have the resources, skills or wherewithal to make any proper judgment on what constitutes negligence.