LUCIEN PIERCE: Why the state’s capitulation over the publication of matric results is a travesty
The department was duty bound to protect pupils’ privacy but has failed
On Tuesday the high court in Pretoria granted an urgent interdict compelling the department of basic education to publish matric results on various media platforms. On January 10 the department had announced it would no longer permit the results to be published in this manner.
The department’s neglect in not opposing the interdict is a travesty. It was duty bound to protect pupils’ privacy, but failed. Search Google using the keywords “matric results anxiety” and you get about 416,000 hits. The keywords “matric results suicide” give 2,68-million results. Headlines such as, “Two allegedly commit suicide over matric results” make difficult reading.
Past predemocracy practices of state institutions resulted in abhorrent infringements of individuals’ privacy rights. Communications were intercepted and couples’ intimate and private moments in their homes were unlawfully photographed. It is for such reasons, among others, that the Protection of Personal Information (Popi) Act of 2013 was passed into law. Our courts have consistently asserted the right to privacy, as recently as last week, saying in the case of Bool Smuts & Another versus Herman Botha that:
“The right to privacy is a fundamental right that is protected under the constitution. It is a right of a person to be free from intrusion or publicity of information or matters of a personal nature. It is central to the protection of human dignity, and forms the cornerstone of any democratic society. It supports and buttresses other rights such as freedom of expression, information and association.
“It is also about respect; every individual has a desire to keep at least some of his/her information private and away from prying eyes. Another individual or group does not have the right to ignore his wishes or to be disrespectful of his desire for privacy without a solid and reasoned basis.”
Given our courts’ unwavering approach to protect and keep “at least some of [a person’s] information private and away from prying eyes”, the department’s failure to oppose the application was an abdication of its responsibility because the five main arguments in the application have no merit:
- The first argument is that the Popi Act protects the personal information of an “identifiable living natural person…”. It is argued that an exam number that only the pupil, their school and the department has access to is not personal information, because third parties cannot identify the pupil from that exam number. This argument cannot be accepted because the term “identifiable” must be interpreted to mean that if a pupil can be identified through that exam number in any way, that number is personal information and protected by the Popi Act.
This means that even if only the pupil’s school and the department have a spreadsheet where the pupil’s exam number is recorded next to their names, that examination number is personal information. “Identifiable” does not only mean identifiable in public, as in newspapers, it means identifiable wherever it may be kept, for example on a server or in a safe under lock and key. This is because , those pupils will be identified if the school’s or department’s servers are hacked, or if the safe is accessed illegally. Schools and government departments are regularly hacked, so there is a real risk that pupils’ exam numbers, names and results could end up in the public domain.
- The second argument is that by revoking the publication of matric results the department has failed to balance the protection of personal information with the free flow of information, such as the right to information held by the state and the right to freedom of expression, including the right to a free press. This argument cannot be accepted. How does it benefit the public, through the media, to know what an individual pupil’s matric results are?
It may be important to know how many males and females passed, or how schools in rural areas fared against those in urban areas, so the government can be held to account. But publishing individual personal information may cause more harm to the pupil compared to the public interest. A pupil’s rights, in this instance, far outweigh the public interest.
- The third argument is that the applicants have a legitimate expectation that because results were published in the past, they would be published this year too. They argue that, because neither pupils nor media houses were consulted on the changes to how matric results would be released, the process, and ultimately the decision, was unfair.
But that personal information was published in the past cannot be used to argue that a fully effective law, in this case the Popia Act, can simply be ignored. It went through a drafting process of almost 10 years, was subject to lengthy input and consultation, and stipulates that as far as privacy is concerned it trumps all other laws that have weaker privacy provisions. Because of this, the department was obliged to comply with Popia and not publish matric results in their current format. SA’s Information Regulator suggested in its statement of January 12 how this should be done.
- The fourth argument is that the prohibition of the publication of exam results will deprive media institutions “of the opportunity to earn income” from advertising campaigns. Yet simply put, the commercial interests of media houses can never, in these circumstances, be more important than pupils’ rights to privacy. That argument cannot be accepted.
- The last main argument was that it would be inconvenient for pupils to go to their schools to get their results. This argument also holds no water. The department has, for a few years, made results available on its website. Further, internet access to the website is free, meaning pupils can easily obtain their results online. Distance is no longer a factor and cannot be sustained as a valid argument.
Learning their matric results can be a happy and exciting time for pupils. It can also, as many of the news articles mentioned above record, be a traumatic time where pupils are faced with the stigma and shame that may come with failing matric. If keeping “at least some of [their] information private and away from prying eyes” will save them from mental and physical harm, then pupils’ right to privacy far outweighs any argument that publication of matric results is in the public interest. The department of basic education failed pupils on this occasion.
• Pierce is director at Phukubje Pierce Masithela Attorneys in Johannesburg.
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