Whatshot
Balancing The Right Of Privacy Against The Right To Freedom Of Expression
Balancing The Right Of Privacy Against The Right To Freedom Of Expression
Date: 2022-04-29
In September 2019, a group of cyclists were participating in an adventure ride in the Eastern Cape. Part of the ride included traversing a farm owned by Botha. One of the cyclists, Louw, saw two cages on the farm containing the bodies of a dead baboon and a dead porcupine. Louw believed that the animals had died as a result of dehydration whilst trapped in the cages. He took photographs of the cages containing the dead animals and sent those photographs to a wildlife conservationist, Smuts.
The conservationist immediately contacted the owner of the farm who informed him that a valid permit to hunt, capture and/or kill the baboons, porcupines. Smuts posted the pictures of the dead baboon and porcupine trapped on the farm owned by Botha on Facebook. Smuts also included a picture of Botha holding his six-month old daughter.
There was also 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. Smuts posted the WhatsApp conversation with Botha and called Botha's actions as 'utterly unethical, cruel and barbaric'.
There was a public outcry thereafter with suggestions that Botha's insurance business be boycotted and veiled threats made against his life. Botha brought an urgent interim interdict prohibiting Smuts from publishing those defamatory statements and ordering him to remove the posts from Facebook.
When the matter went back to court for the interim order to be made final, the High Court said that Smuts and his wildlife organisation were entitled to publish the photographs and to comment on them, but they were not entitled to publish the fact that the photographs were taken on a farm belonging to Botha.
The high court said that the name of the farm and Botha's identity, as owner of it was personal information which was protected by his right to privacy. Botha took the matter on appeal. The Supreme Court of Appeal had to consider whether in publishing the posts on Facebook, the balance between the two competing rights, namely the right to freedom of expression and the right to privacy was met.
The SCA said the right to privacy was the cornerstone of our democracy and all of us have a right to be free from intrusion or publicity of information or matters of a personal nature and to keep our personal information private and away from 'prying eyes'.
In the case before it, however the right of activists to speak out and the right of the public to receive information, views and opinions about the animal practices was equally important and should not be ignored.
The SCA held that the right to privacy is most simply the right of a person to be left alone, to be free from unwarranted publicity and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned.
However, in this case, the identity of Mr Botha and his farm are matters that he has placed in the public domain. So too are his practices of animal trapping; he openly admitted to the use of animal trappings. Mr Botha has put all his personal information in the public domain.
The public interests in the treatment of animals apart from the lawfulness of the trapping must accordingly enjoy protection over his personal information. Apart from the unlawfulness, the public has a right to know about the activities of his business that directly impact animals.
The court found that the "public has a right to be informed of the humane or inhumane treatment of animals at 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."
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