The Supreme Court of Appeal ("SCA") recently dealt with the tension between the right to privacy and the right to freedom of expression in the matter of Bool Smuts and another v Herman Botha. The SCA made significant findings in this regard, namely that whilst the publication of personal information is generally protected by the right to privacy, in certain instances the right to freedom of expression outweighs the right to privacy. In considering the issues before it the SCA had to make an enquiry, which was whether the publication of personal information in certain Facebook posts was protected by the right to freedom of expression.
The genesis of the dispute is found in a photograph taken by a cyclist on a farm belonging to Mr Botha. On 23 September 2019, whilst traversing Varsfontein farm in an adventure ride, a cyclist noticed two cages containing a dead baboon and a dead porcupine. The cyclist noticed oranges near the baboon and surmised that the animals had died as a result of dehydration whilst trapped in the cages. The conclusion was also supported by the positioning of the cages in an area where there was no shade and water. The cyclist captured the images and furnished same to Mr Smuts, a wildlife conservationist and the executive director of Landmark Leopard and Predator Project South Africa.
Mr Smuts posted the images of the deceased baboon and porcupine onto Landmark Leopard's Facebook page criticising Mr Botha for what he described as contrarian practices. The photographs were captioned with the personal information of Mr Botha, in particular his profession and the location of his farm. The post generated several comments mostly in condemnation of Mr Botha's practice of trapping animals. Mr Botha defended his position by stating that he had a valid permit to hunt capture and/or kill baboons and porcupines.
As a result of the negative publicity generated by the post, Mr Botha initiated an application for an interim interdict in the High Court ("HC") against Mr Smuts seeking the removal of the photographs and certain portions of the Facebook post that made reference to Mr Botha's business, location, and the name of the farm. The interim interdict was granted.
On the return date, the interim interdict was confirmed by the HC. The HC found that whilst Mr Smuts (and by extension Landmark Leopard), was entitled to publish the photographs and to comment on them, he was not entitled to publish the fact that the photographs were taken on a farm belonging to Mr Botha. The High Court reasoned that the name of the farm and Mr Botha's identity as the owner constituted personal information protected by his right to privacy and that there was no compelling public interest in the disclosure of the personal information. The finding in favour of Mr Botha led to an appeal in the SCA by Mr Smuts.
In summary, the SCA made three significant findings. Firstly, it found that the HC erred in disregarding the content of Mr Smuts' post and focusing on the response by members of the public. The SCA lamented the HC's approach as having far-reaching implications because it stifles the debate and censors the activists' right to disseminate information to the public. The SCA added that it denies citizens the right to receive information and engage in a platform for the exchange of ideas, which is crucial to the development of a democratic culture.
Secondly, the SCA found that the HC's findings interfere with the right to freedom of expression and fails to strike a proper balance between personal information and the right to privacy. Thirdly, the SCA found that the HC failed to recognise that publicising the truth about Mr Botha's animal trapping activities, to which the public have access and interest, does not violate his right to privacy.
The importance of the findings made by the SCA cannot be overstated. Whilst it may be argued that the protection of personal information is a fundamental right, more particularly in times where various social media platforms continue to face scrutiny in terms of their privacy policies and where certain legislation has come into effect to prevent the abuse of personal information, the judgment appropriately balances two competing rights namely the right to freedom of expression and the right to privacy. In this instance, the personal information sought to be protected by Mr Botha could be found in the Deeds office and on Google, therefore any claim that the information should remain private in those circumstances would be, as found by the SCA, conceptually flawed.
In conclusion, the right to freedom of expression and the right to privacy are mutually reinforcing rights. The tension between the two rights is exacerbated by social media platforms. In the event that these rights are in conflict, a careful balance must be made in order to ensure that the rights are protected.
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