The right to privacy where certain information is already in the public domain, against the right to freedom of expression, came under the spotlight in the Constitutional Court, when an insurance broker complained about his private information, including his home address, being published on social media.
This legal issue has been determined by the high court, the Supreme Court of Appeal (SCA), and ultimately landed in the apex court.
It was sparked when an insurance broker, who is also a farmer, complained after a wildlife conservationist posted pictures on social media of a dead baboon and porcupine found in cages on the broker’s premises.
Eastern Cape farmer and insurance broker Herman Botha was livid after conservationist Bool Smuts posted pictures of the dead animals on Facebook.
Also included were Botha’s details, such as where he lived.
Botha turned to the Makhanda High Court and obtained an interim interdict against Smuts from publishing his details online. Smuts, in turn, approached the SCA.
Five judges ruled in his favour and ordered that the interdict had to be lifted. The judges reasoned that while the right to privacy was important, there were occasions that the public interest prevailed.
The court earlier said that, besides, a lot of Botha’s personal information, such as that he owned the farm, was in the public domain due to his own accord.
In September 2019, a cyclist noticed two cages on the farm containing a dead baboon and a dead porcupine.
He formed the view that the animals had died of dehydration while trapped in the cages.
He sent the pictures to Smuts, who is also the founder and executive director of the organisation Landmark Leopard and Predator Project – South Africa.
Smuts contacted Botha via WhatsApp, and Botha confirmed that he had a valid permit to hunt, capture and/or kill the baboons, porcupines and other vermin. Smuts then posted, on Landmark Leopard’s Facebook pages, pictures of the dead baboon and the porcupine, and included a picture of Botha holding his 6-month-old daughter.
Additionally, he posted a Google Search Location of Botha’s business, his home address, and his telephone numbers and called Botha’s conduct “unethical”, “cruel” and “barbaric”.
The post generated many comments on Facebook, which were mostly insulting of Botha. Botha successfully obtained an interim interdict prohibiting Smuts from publishing “defamatory” statements about him and from posting pictures of him and his family and stating where they lived.
But Smuts scored his victory when the SCA overturned the interim interdict.
Botha, unhappy with this verdict, turned to the Constitutional Court to fight for what he said is his right to privacy and appealed the SCA’s decision.
Smuts argued for freedom of expression based on public interest.
Botha did not challenge Smuts’s constitutional right to post the photographs (except for one depicting his daughter which by then had been removed) and express his view on trapping.
He accepted that the publication of the post may have been in the public interest, but he challenged Smuts’s right to use his personal information to link him to the post on the basis that this would unjustifiably infringe his right to privacy.
The Constitutional Court’s findings on the matter produced four judgments on the various issues.
The effect of these judgments is that seven of the judges found that Botha’s information regarding the ownership and control of his farm and his insurance brokerage address are not private, and therefore, the appeal is dismissed in this regard.
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Pretoria News