Trial by social media: when the right to name and shame must be balanced with the right to privacy

A look at the Bool Smuts and Another v Herman Botha judgment

This is an appeal to the Supreme Court of Appeal (SCA) against a decision from the Eastern Cape Division of the High Court, Grahamstown (the High Court).  

The Respondent, Mr Botha, owns a farm through which cyclists on an adventure ride traversed and noticedcages holding a dead baboon and a dead porcupine. One of the cyclists took photos of the cages and noted that they were situated in a place with no shade or water but that there were some oranges near the baboon. It led him to believe that the animals had died from dehydration. The cyclist then sent the photos to the Appellant in the matter, Mr Smuts, a wildlife conservationist who is also the founder and executive director of the second appellant: Landmark Leopard and Predator Project – South Africa (Landmark Leopard). Mr Smuts subsequently posted the photos to the Landmark Leopard Facebook Group, including the following information: pictures of the dead baboon; a picture of Mr Botha holding his infant daughter; a Google search location of Mr Botha’s business and home address and telephone numbers; and a WhatsApp conversation between himself and Mr Botha in which Mr Botha confirmed that he had a permit to trap animals. He further condemned Mr Botha’s manner of trapping the animals and stated that he claimed to have a permit for trapping animals.

In response to the Facebook backlash he received, Mr Botha applied for an interim interdict in which the court ordered Mr Smuts to stop posting defamatory statements about Mr Botha or anything further regarding his business and family and to remove the photos and sections of the post that concerned Mr Botha’s business, where it was situated and the name of his farm. On the return date, the rule nisi was confirmed on the reasoning that Mr Botha’s right to privacy was infringed by the act of having his personal information disseminated on Facebook. 

The issue centred on a balance between the right toprivacy and the right to freedom of expression. Regarding the right to privacy, it needed to be decided whether this right protected against the dissemination of Mr Botha’s personal information; whether it was in the public’s interest for his personal information to be published and whether the backlash comments on Facebook could be considered fair comment, considering the communication’s aim to expose Mr Botha’s use of brutal animal traps. The court noted that the scope of the right to privacy is where there is a legitimate expectation of it manifested as a subjective expectation of privacy that society recognises as objectively reasonable. It manifests as a spectrum of privacy interests that need to be balanced with the rights of other citizens. It was noted that the right to freedom of expression is at the core of democracy and is embodied in the public interest for divergent views to be disseminated in public, to be scrutinised and debated. 

The court decided that Mr Botha utilised animal traps publicly, in places that are accessible to hunters and cyclists, and that his information is freely available in the Deeds Office and on Google, and that he published his name, occupation and address himself on the Internet. It was held that Mr Smuts provided further publicity to Mr Botha’s information that already existed in the public domain. The High Court was held to have erred on three main issues:

1. The content of Mr Smuts’s post was overlooked and the response by the public was instead the focus.

2. It failed to achieve a proper balance between the right to freedom of expression and activism and the right to privacy and personal information.

3. It failed to acknowledge that Mr Botha’s right to privacy is not overridden by the truth of his trapping activities being exposed and made publicly accessible. 

This judgment is an important step forward in the extension of the Bill of Rights as a tool in protecting animal rights where they were once merely recognised as human property, as passed down from our English law tradition.