Bool Smuts and Another vs. Herman Botha

South Africa

10.01.2022

Civil

The right to privacy is not sacrosanct, it must be balanced with the rights of other citizens

The issue before the present Court was whether the publication of the Facebook posts by Mr. Smuts is protected by the right to freedom of expression. Mr. Botha contended that Mr. Smuts’ Facebook post infringed on his right to privacy as it included his identity, family, home address and his business address. He further contended that the Facebook post is inflammatory to the extent that it makes reference to practices that are unethical, barbaric and utterly ruinous to biodiversity.

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.

Privacy enables individuals to create barriers and boundaries to protect themselves from unwarranted interference in their lives. It helps to establish boundaries to limit who has access to their space, possessions, as well as their commercial and other information. It affords persons the ability to assert their rights in the face of significant imbalances. It is an essential way to protect individuals and society against arbitrary and unjustified use of power by reducing what can be known about, and done to them. The right to privacy is not sacrosanct, it must be balanced with the rights of other citizens.

Mr. Smuts was right to expose what he considered to be the cruel and inhumane treatment of animals at Mr. Botha’s farm. Furthermore, the public has a right to be informed of the humane or inhumane treatment of animals at Mr. Botha’s farm. Members of the public have the freedom to decide which commercial enterprise they support and which they do not. That freedom of choice can only be exercised if activities happening at Mr. Botha’s farm are laid bare for the public. It would serve no useful purpose in publishing the photographs without stating where they were taken, by whom the traps were used and naming the farm and identifying its owner.

Mr. Botha’s personal information was in the public domain before Mr. Smuts published the posts. His ownership of the farm Varsfontein was a matter of public record in the Deeds Registry, his name and occupation as an insurance broker, along with his Port Elizabeth address had been published on the internet by Mr. Botha himself thus, his right to privacy was not infringed. Essentially, what Mr. Smuts did was to give further publicity to information about Mr. Botha that was already in the public domain. There was no basis for the interdict against Mr Smuts. The appeal is upheld.

Tags : Publicity Information Dissemination

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