Staff Reporter
The Supreme Court of Appeal (SCA) has ruled that the right to privacy for personal information falls away once such details are made public by the owner.
The SCA said this when it upheld, with costs, an appeal against a decision of the Eastern Cape High Court in which Eastern Cape farmer Herman Botha dragged Bool Smuts to court for publishing on Facebook what he considered sensitive about him and a situation at his farm without his consent.
The matter, according to court papers, dates back to September 23, 2019 when a group of cyclists were participating in an adventure ride organised by Quantum Adventure.
During their ride, they traversed Varsfontein Farm owned by Herman Botha.
Nicholas Louw, one of the cyclists, noticed two cages on the farm, one containing a dead baboon and the other a dead porcupine.
Louw noticed that the cages were positioned where there was no shade and water and there were some oranges near the baboon.
He formed the view that the animals had died as a result of dehydration whilst trapped in the cages.
Incensed by what he saw, he took photographs of the cages containing the dead animals and sent them to Smuts, the first appellant, who is also a wildlife conservationist, founder and executive director of Landmark Leopard and Predator Project South Africa.
Upon receipt of the photos, Smuts contacted Botha via WhatsApp.
Botha confirmed that he had a valid permit to hunt, capture and/or kill the baboons, porcupines and other vermin.
On October 9, 2019, Smuts posted, on Landmark Leopard’s Facebook pages, pictures of the dead baboon and porcupine trapped on the farm owned by Botha.
In the posts, Smuts also included a picture of Botha’s six-month old daughter.
Additionally, he posted a Google search location of Botha’s business, his home address and his telephone numbers.
The WhatsApp conversation between Smuts and Botha was also posted.
In that post, Botha was asked by Smuts if he had a permit to trap animals to which he responded in the affirmative.
The post was accompanied by a caption, part of which reads as follows: “[t]his is utterly vile. It is ecologically ruinous. Mr Botha claims to have permits to do this – see the Whatsapp conversation with him attached.”
Botha contended that 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 was inflammatory to the extent that it made reference to practices that are unethical, barbaric and utterly ruinous to biodiversity.
The issue before the SCA was whether the publication of Facebook posts by Smuts is protected by the right to freedom of expression and whether Botha could rightfully claim right to privacy in relation to the information published.
The SCA held that Smuts was right to expose what he considered to be the cruel and inhumane treatment of animals at Botha’s farm.
Furthermore, the SCA held that the public has a right to be informed of the humane or inhumane treatment of animals at Botha’s farm.
It said members of the public have the freedom to decide which commercial enterprise they support and which they do not.
The SCA found that the High Court in Grahamstown erred in its ruling because Botha had initially published information about himself and his business.
“It is conceptually flawed that such information can remain private when it has been made public by Mr Botha himself,” the SCA found.
“The fact that he is a commercial farmer who uses animal traps is not a matter that he should keep private at all. There is no suggestion in the posts that Mr Botha is acting unlawfully. What the posts asserted is that he is acting unethically and thus the public have a right to know of such practices.
“The purpose of the public debate is to say things that others find different and difficult. Public debate does not require politeness. What Mr Botha seeks to do is to unjustifiably limit Mr Smuts’ right to freedom of expression and his entitlement to make a fair comment on the facts that are true and related to matters of public interests,” the SCA said in its ruling.
It said the High Court, in recognising Smuts’ right to freedom of expression, erred in two respects:
First, it considered Botha to have a right to privacy of comparable importance.
“That is not so” because the information was in the public domain, and Botha consequently had a weak right to privacy in respect of that information.
Second, the High Court approached the matter by asking whether Smuts could have exercised his right to freedom of expression with greater restraint so as to afford Botha’s right to privacy greater protection.
That, said the SCA, is not the correct way to look at the matter.
It said a court should not act as a censor to determine how best persons might speak.
“In this case, Mr Smuts enjoyed the right to air his views as to animal cruelty and attribute to Mr Botha the practice of trapping.
“After all, that information was true, never denied by Mr Botha, nor hidden by him.
“In these circumstances, the test is not whether Mr Smuts could have posted more cautiously, the question is whether Mr Botha had any claim to privacy in respect of the information posted.
“His claim, as I have explained, was weak,” noted Justice Rammaka Steven Mathopo in the ruling.
He said the contention by Botha that the Facebook post suggested that Botha acted unlawfully when he trapped the baboons and porcupine in cages and that he allegedly poisoned the captured animals has no merit.
The Facebook post, according to the judgment, merely stated that Botha claims to have a permit and that nowhere in the post is it suggested that he is acting unlawfully.
“In sum, 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.
“That said, there was no basis for the interdict against Mr Smuts. The appeal must be upheld,” the SCA concluded.
It said that freedom of choice can only be exercised if activities happening at Botha’s farm are laid bare for the public.
The SCA said 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.