SISA NHLABATHI | Behind closed doors: privacy, intimacy and the ethics of exposure

The recent circulation of two intimate videos has again ignited public debate. While the facts of each incident may differ, both raise a broader question that extends beyond the personalities involved.

The real issue is not merely what happened but what ought to remain private between two people who have willingly entered an intimate relationship.

The constitution provides a useful starting point. Section 14 guarantees everyone the right to privacy, including protection against unlawful intrusion into their person, property, possessions and private communications.

The wording is deliberate. It says everyone, not strangers alone, not only public figures, and certainly not only those who are on good terms with one another. Marriage does not extinguish constitutional rights. Neither does a romantic relationship.

This naturally raises difficult questions. How much privacy exists between a husband and wife? Does marriage amount to a permanent waiver of privacy? Does sharing a bed also mean surrendering every expectation of confidentiality? Or can two people occupy the same home while possessing aspects of life that remain legally and morally their own?

The law generally recognises intimacy does not erase individuality. Spouses owe each other trust, fidelity and honesty, but they do not cease to be separate legal persons. The same applies to unmarried couples. Their relationship may be deeply personal, yet each retains constitutional rights, including the right to dignity under section 10 and the right to privacy under section 14.

Relationships are built on an invisible currency called trust. Once that trust is converted into evidence for public consumption, something far greater than a relationship is lost

This becomes particularly important when photographs, voice recordings or videos are created within the confines of an intimate relationship. Technology has made recording effortless; wisdom has not necessarily kept pace.

While South African law permits a person, in many circumstances, to record a conversation to which they themselves are a party, that legal position should never be mistaken for an unrestricted licence to weaponise intimacy.

The legality of making a recording is only one part of the equation. The subsequent use, publication or dissemination of that material may engage constitutional rights to privacy and dignity, and legislation such as the Protection of Personal Information Act (Popia). What may be technically lawful is not always ethically defensible.

Relationships are built on an invisible currency called trust. Once that trust is converted into evidence for public consumption, something far greater than a relationship is lost. Society itself becomes poorer because confidence between human beings is eroded. Every whispered conversation becomes a potential exhibit. Every vulnerable moment becomes content.

The American jurist Louis Brandeis famously described privacy as “the right to be let alone”. Those words remain remarkably relevant today.

In an age where every mobile phone is a camera, every disagreement can become a livestream and every private moment can become permanent digital evidence, the right to be left alone has become more precious than ever.

History also reminds us civilisation has long distinguished between what is public and what belongs behind closed doors. The Roman statesman Cicero observed that “the foundation of justice is good faith”.

Good faith cannot flourish where every conversation is secretly archived for future advantage. Trust cannot survive where discretion has become obsolete.

This is where morality enters the discussion.

There is an old question in business ethics: Does morality have a place in commerce? Some argue business is simply business, that profit alone matters. Yet if morality were entirely absent from commercial life, entire industries would collapse under the weight of mistrust.

The existence of information does not automatically justify its disclosure. Possessing the ability to expose someone is not the same as possessing the moral authority to do so

Consider the hospitality industry. Hotels, guesthouses and lodges accommodate thousands of guests every day. They witness private reunions, family disputes, marriage proposals, celebrations, heartbreaks and, at times, relationships that society itself may judge harshly.

Yet reputable establishments do not survive by exposing their guests. They survive because discretion is part of the product they sell. Confidentiality is not merely courtesy; it is sound business.

The identity of guests, the details of their stay and what transpires within the lawful confines of their accommodation are treated as confidential commercial information. Were hotels to routinely publish what they know about their clientele, the hospitality industry would soon cease to be hospitable.

The same principle applies beyond commerce. The existence of information does not automatically justify its disclosure. Possessing the ability to expose someone is not the same as possessing the moral authority to do so.

None of this suggests privacy should shield criminal conduct, abuse or serious wrongdoing. The law rightly provides mechanisms for reporting offences, obtaining protection orders and presenting evidence before competent authorities. Privacy is a constitutional right, not a licence for impunity.

However, where no such overriding public interest exists, society ought to resist the temptation to transform intimate relationships into public theatre.

We should be cautious before applauding the publication of recordings, photographs or conversations that were created within relationships founded on confidence. Today’s spectator may become tomorrow’s subject.

Perhaps the true measure of a society is not how eagerly it consumes another person’s private life but how carefully it protects the dignity that every individual retains, even after love has faded.

If privacy means anything at all, it must mean something precisely where trust is expected to exist the most: behind closed doors.

• Nhlabathi is a fellow at the Centre for Entrepreneurship and Innovation at the University of the Western Cape.