Appeal court dismisses farmer's claim to privacy after being 'named and shamed' on social media

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Conservationist Bool Smuts published photos on Facebook to expose how a farm owner was capturing and killing baboons and other wildlife. (Landmark Leopard & Predator Project - South Africa)
Conservationist Bool Smuts published photos on Facebook to expose how a farm owner was capturing and killing baboons and other wildlife. (Landmark Leopard & Predator Project - South Africa)
  • The Supreme Court of Appeal has dismissed a farm owner's claim to right to privacy.
  • The court found that the farmer's information was already in the public domain, therefore, the right to privacy was not infringed upon.
  • The case casts a spotlight on issues between the right to privacy and the right to freedom of expression.


The Supreme Court of Appeal (SCA) has dismissed a farm owner's claim to the right to privacy after he was 'named and shamed' on Facebook for the alleged mistreatment of animals.

In a judgment handed down electronically on 10 January, the SCA found, among other issues, that the farm owner's personal information was in the public domain before the activist published the posts on social media. Thus, his right to privacy was not infringed upon.

"Essentially, what Mr [Bool] Smuts did was to give further publicity to information about Mr [Herman] Botha that was already in the public domain. That said, there was no basis for the interdict against Mr Smuts," the 16-page judgment penned by Appeal Court Judge Rammaka Mathopo read.

Animal rights activist Bool Smuts of the Landmark Leopard and Predator Project has seen victory after the SCA set aside a Port Elizabeth High Court judgment. The judgment granted farmer Herman Botha an interdict that prohibited Smuts from posting personal information about him.

Background

On the 23rd of September 2019, a group of cyclists participated in an adventure ride organised by Quantum Adventure. The ride saw them traverse Botha's farm Varsfontein.

According to court papers, one of the cyclists noticed two cages on the farm, one containing a dead baboon, the other a dead porcupine, and the cages, according to his observation, were positioned, "... where there was no shade and water.

"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 the first appellant, Mr Smuts, a wildlife conservationist and activist who for the past 17 years has been a leader in efforts to promote the conservation of indigenous wildlife in South Africa, particularly in the Eastern, Western and Northern Provinces," the papers read.

READ | Cape Town pensioner accused of abusing her dogs

Upon receiving the said photographs, Smuts contacted Botha, who confirmed that he had a, "... valid permit to hunt, capture and/or kill the baboons, porcupines and other vermin.

"On the 9 October 2019, Smuts posted on Landmark Leopard's Facebook pages. The post included pictures of the dead baboon and porcupine trapped on the farm owned by Botha.

Smuts also included a picture of Botha holding his six-month-old daughter [which was removed prior to the interdict]. Smuts posted a Google Search Location of Botha's business, his home address, and his telephone numbers.

A WhatsApp conversation between Smuts and Botha was also posted. The post generated numerous comments, many of which were, "... critical, slanderous and insulting."

Botha subsequently launched an urgent application in the High Court of the Eastern Cape Division, Port Elizabeth, for an interim interdict prohibiting Smuts and Landmark Leopard from publishing defamatory statements about him.

The High Court held that although Smuts and Landmark Leopard were entitled to publish the photographs and to comment on them, they were not entitled to publish the fact that the photographs were taken on a farm belonging to Botha.

"The high court reasoned that the name of the farm and Botha's identity, as owner of it, constituted personal information protected by his right to privacy. It held that Botha established a clear right to an interdict, and his right to privacy was infringed by the publication of his personal information on Facebook," the judgment reads.

Smuts took the matter on appeal.

The question to be determined by the SCA was whether the publication of Botha's personal information, that is, his identity, business, and home address enjoyed the protection of the right to privacy. In addition, at the centre of the appeal before the SCA was whether the publication of the Facebook posts by Smuts was protected by the right to freedom of expression.

"In essence, what is implicated in this appeal is the tension between the right to privacy and the right to freedom of expression. This calls for a delicate balance to be drawn between these two important, competing rights," the judgment further reads.

The SCA subsequently found, among other things, that the information was already in the public domain. The appeal court further stated that Botha's 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 Botha himself thus, his right to privacy was not infringed upon.

Read the full judgment here.

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