Bruce Schneier once said, “Privacy is an inherent human right and a requirement for maintaining the human condition with dignity and respect.”
In modern times respecting someone’s privacy and space is essential, especially if you don’t want yours to be compromised. No one can deny Aristotle’s statement that “Man is a social animal” and he can’t survive in isolation.
People have been provided with the right to speak and freedom of making opinions, by legal authorities as well as by society, but it has some limitations.
A recent decision by the HIV and AIDS Tribunal has reinforced the need to respect the right to privacy by not disclosing someone’s HIV status without their written consent.
This goes a long way in fashioning and empowering a legal environment free from stigma and discrimination, where the rights of people living with HIV and AIDS are promoted and protected.
“A person’s HIV status is a private affair and should not be disclosed to third parties without consent as per section 22 of the HIV and AIDS Prevention and Control,” the tribunal ruled.
The six-member tribunal found that the privacy of people who are living (or perceived to be living) with HIV and AIDS needs to be protected to prevent stigmatization and discriminatory actions like denial of access to health.
In 2006, the HIV and AIDS Prevention and Control Act (the Act) was enacted. The Act acknowledged the various practices of injustice that result from an ‘irrational, panicky and fear-driven’ reaction. To adjudicate and provide suitable remedies in lawsuits concerning violations, the Act created the HIV and AIDS Tribunal. The Act protects the privacy of people infected or at risk of HIV and AIDS.
For instance, Section 21 assures any person to whom an HIV test relates to confidentiality of records. Section 22 (1) (a) of the Act prohibits the disclosure of any information concerning the results of an HIV test or any related assessment to any other person except with the written consent of that person.
Section 23 penalizes breach of confidentiality in enforcing these provisions. Notably, the Tribunal is the first of its kind globally and is remarkably observing its duty to enforce the rights of people living with and affected by HIV in Kenya through expeditious judgments and resolute application of the law.
VWN v GG is an accurate example. The case involved the disclosure of the claimant’s HIV status without consent. The claimant and respondent were members of the same social media platform called, “Distance Relatives,” which is a WhatsApp group of not less than 90 members.
While in the same group, the claimant says that on July 25, 2023, at 7:54 pm the respondent disclosed her health status by posting her picture to embarrass her.
She added that at 8:04 pm, the respondent also posted a screenshot of a post from a telegram group called Love Parlour to which he had posted her picture with a warning that disclosed her HIV status. The man is also said to have uttered dismaying words to the claimant regarding her HIV status.
This extract represents the unfortunate predicament that a lot of people endure either through disclosure of their perceived or real status without consent to the public or through online media, discrimination in employment, compulsory testing, and even the lack of provision of social services.
The claimant, identified as VWN, proceeded to institute a claim in the HIV and AIDS Tribunal seeking an order, among others, against the respondent restraining him from disclosing the claimant’s status and a declaration that the respondent infringed her right under Sections 22 and 23 of the HIV and AIDS Prevention and Control Act.
She also sought damages for the impairment of dignity, emotional, physical, and psychological suffering.
This was after efforts by the lady to try to get the respondent to apologize for the remarks on the platform to no avail.
The respondent, on the other hand on September 21, 2023, denied all the allegations as contained in the Claimant’s case and advanced a counterclaim against the Claimant for also disclosing his HIV status.
In her testimony on October 19 last year, the claimant informed the tribunal led by its chairperson Carolyne Mboku that she felt embarrassed, stigmatized, and discriminated against because of the disclosure of her HIV status without her consent to the thousands of telegram and WhatsApp users who saw and reacted to the posting.
“The threat to disclose my HIV status followed a misunderstanding l had with the Respondent(GG) in the WhatsApp group,” She stated
The woman also produced various screenshots of the WhatsApp group where the alleged violation occurred to prove the case against the respondent.
In support of her evidence, She called a witness known as PMW who testified that he is a subscriber to the telegram channel and a member of the group known as Love Parlour, which has over five thousand subscribers.
He confirmed that the respondent is the administrator of the group and that GG offers a paid platform for people to do exposes.
The witnesses confirmed the averments of the claimant adding that at 8:41 pm, the GG posted another picture of the claimant with a warning and exposed her health status to the members of the group.
On cross-examination, the witness confirmed that GG shares various WhatsApp groups with the claimant and that he is the one who called the claimant to tell her that she has been exposed in the group.
On his side, GG testified before the tribunal where he confirmed he is a member of the “Distance Relatives” WhatsApp group.
He accused the claimant of posting his status in a support group called” Queens and Kings”.
He confirmed before the tribunal that he was exchanging harsh words with the claimant because of a picture he had sent on the Queens and Kings WhatsApp group.
GG tendered evidence that the claimant started sharing screenshots, which she has now deleted, saying that he was a prostitute.
Further, the Respondent confirmed that his number posted the alleged pictures and that he uses different names on the telegram channel and the WhatsApp group.
The Tribunal, while making its judgment, cited with approval Section 22 (1) (a) of the Act that requires non-disclosure of any information regarding the results of an HIV test or any related assessment to any other person without the written consent of that person.
In light of this provision, the six-member tribunal held that GG illegally disclosed the claimant’s HIV and Aids status with her consent.
“It is our finding that the Respondent’s actions amounted to a violation of the provisions of section 22 of HAPCA, and that he unlawfully and without consent of the Claimant, disclosed the Claimant’s status, real or perceived, to third parties, being the members of the aforementioned WhatsApp group,” the tribunal ruled.
“We reiterate, as we have always done before in cases we have adjudicated in the past, that a person’s HIV status whether real or perceived ought not to be disclosed to third parties without prior written consent of that person. This Tribunal will not shy away from enforcing the objects for which the legislature enacted the law we operate in,” they added
The tribunal also found that GG unlawfully disclosed the claimant’s health status causing her to face mockery, discrimination, and psychological torture.
“Taking into consideration the testimony of the Claimant and her witnesses, the evidence tendered in support of her claim, and the unfeasibility of quantifying stigma, we do find that the Claimant herein suffered discrimination and or stigmatization,” they ruled.
Consequently, The HIV and Aids Tribunal ordered the man to pay a total of Sh 650,000 as general damages for disclosing the HIV status of the claimant through a comment on a WhatsApp group and causing stigmatization.
“We thus award Sh.500,000 for the unlawful disclosure of the Claimant’s status to third parties without her consent and Sh 150,000 for the discrimination and or stigmatization suffered,” the Tribunal ordered
It further issued an order restraining GG as identified in case documents, from disclosing VWN’s HIV status, discriminating, stigmatizing, or harassing her.
They also dismissed the counterclaim as filed by GG for lacking merit with costs.
VWN v GG is one of the many cases that the Tribunal has handled concerning the disclosure of someone’s HIV status without written consent.
The facts in VWN v GG are similar to PMM v FO hereby the respondent made known the claimant’s HIV status on a social media platform, a Western Political Forum, due to their contrasting views.
In a decision rendered last year, the Mboku-led tribunal also slapped another FO with Sh 850,000 for exposing his male friend’s HIV status in a WhatsApp group.
The claimant had told the tribunal that at all times together with FO they were members of the same political WhatsApp group (relating to a political party’s team in the Western region).
He said that on July 3, 2022, he was engaged in a political discussion on the WhatsApp group where he posted a comment that was divergent from FO’s view of the person likely to win as the Member of Parliament of a constituency.
In retaliation, PMM said the respondent publicly posted a comment on the WhatsApp group that alleged that he was HIV positive and that the post was done in the presence of all members of the group and has caused him to suffer stigma and loss of dignity.
According to PMM, he opted to send a private message to the respondent requesting him to stop insulting him and posting in various political WhatsApp groups false allegations of his HIV status but he (respondent) was unapologetic for his actions.
The court documents show that the word on PMM’s alleged HIV status got to his wife who in turn moved from their matrimonial bed and started sleeping in a separate bedroom and that people in his local church avoided sitting next to him.
The Tribunal also held that the respondent violated Section 22 of the Act by unlawfully disclosing the claimant’s status, real or perceived, to third parties without the Claimant’s consent. It further highlighted that Section 22 protects against the unnecessary and unwarranted revelation of one’s status, which is a private affair. HIV status is a private affair whose disclosure can and will cause mental distress and injury to a person, hence the need to keep this information confidential.
This holding is an import of Article 31 of the Constitution which guarantees every person with the right to privacy
