Victory for freedom of speech in South Africa — with huge privacy implications

The Supreme Court of Appeal has ruled in favour of animal rights activist Bool Smuts, who publicly posted another man’s name, address, telephone numbers, workplace, and picture on Facebook.

Smuts posted the particulars of Herman Botha online — a practise referred to as “doxing” — after being sent photos of a baboon and porcupine that had been trapped on his farm and left to die of dehydration.

A crucial detail was that Smuts afforded Botha a chance to explain himself. Over WhatsApp, Botha told Smuts that he had a valid permit to hunt, capture, and kill vermin such as baboons and porcupines.

Smuts then posted screenshots of the conversation, together with Botha’s details and a picture of him holding his six-month-old daughter on Facebook.

BizNews investigations editor Martin Welz said the court found that when you put your face, address, telephone number, or views on Facebook, and it is available on a Google search, it is no longer private.

“The Appeal Court judges, all five of them, concur that Botha deserved to be exposed,” Welz said.

BizNews reported that Appeal Judge R S Mathopo (pictured) wrote the judgement, with judges Zondi, Plasket, Mbatha, and Unterhalter concurring.

In addition, the judges ruled that it would serve no useful purpose in publishing the photographs without stating where they were taken, by whom the traps were used, naming the farm, and identifying the owner.

Mathopo, Zondi, Plasket, Mbatha, and Unterhalter also stated that freedom of expression does not require politeness.

“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.”

Bool Smuts, animal rights activist at the Landmark Foundation

Cyclist Nicholas Louw discovered the scene that sparked outrage among animal rights activists on 23 September 2019 while on an early morning adventure ride through farmlands in the Eastern Cape.

After receiving the photos, Smuts contacted Botha, who stated that he had a valid permit to hunt, capture, and kill vermin such as baboons and porcupines.

Smuts then posted screenshots of the conversation, together with Botha’s particulars, to the Landmark Leopard & Predator Project Facebook page.

He took a photo from Botha’s public Facebook page, in which he held his six-month-old daughter, and included it in his posting.

In the post, Smuts stated:

We spend our efforts trying to promote ecologically acceptable practice on livestock farms to promote ecological integrity and regeneration. These images are from a farm near Alicedale in the Eastern Cape owned by Mr Herman Botha of Port Elizabeth, who is involved in the insurance industry. The farm is Varsfontein. This is utterly vile. It is ecologically ruinous. Mr Botha claims to have permits to do this. The images show a trap to capture baboons (they climb through the drum to get to the oranges — often poisoned — and then cannot get out.) See the porcupine trap too. Utterly unethical, cruel and barbaric.

Botha obtained an interim interdict on 4 June 2020, ordering Smuts and the Landmark Foundation to remove the photo, references to his name, place of work, the farm and its address, and contact details.

On appeal, the Supreme Court overturned the decision.

It said the High Court approached the case incorrectly by asking whether Smuts could have exercised his right to freedom of expression with greater restraint to afford Botha’s right to privacy greater protection.

“A court should not act as a censor to determine how best persons might speak,” the Supreme Court of Appeal found.

“In this case, Mr Smuts enjoyed the right to express his views about animal cruelty and attribute to Mr Botha the practice of animal trapping. That information was true, never denied by Mr Botha nor hidden by him.”

Emma Sadleir
Emma Sadleir, social media and Internet law expert

While the Supreme Court ruling clarifies some issues around personally-identifying information posted on public platforms, it is not a licence to dox.

Social media law specialist Emma Sadleir explained during a 2020 webinar that the circumstances and context of a case are essential.

“Over the last few decades, the law has come up with a common law test for privacy which basically says that if I can show that I have a legitimate expectation of privacy in a particular set of circumstances and somebody infringes on it, I can sue them,” Sadleir stated.

An expectation of privacy could change based on the circumstances.

There were two defences when dealing with this — consent and public interest.

The Supreme Court specifically mentioned the issue of public interest in the Botha vs Smuts case.

“Today, we essentially treat online and digital content as we would public content in any space. What I say on Facebook will be treated exactly the same way as if I had written it in a newspaper or on a poster,” said Sadleir.

“The principles are there, and they are good, but it is a question of how are we going to apply these very old laws to these very new ways of communicating and living.”

Supreme Court of Appeal ruling in Smuts vs Botha

Now read: These WhatsApp messages can now land you in jail in South Africa

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Victory for freedom of speech in South Africa — with huge privacy implications