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Social media: When can the right to freedom of expression be limited by the right to privacy?

Posted 06 June 2022

Nicole Dembitzer

The very fabric of public exchange has bound itself to these platforms in such a way that the dissemination of ideas, knowledge and basic communication is now increasingly reliant on the online ‘communities’ that operate in this space.

In theory, the constitutional right to freedom of expression means that we are at liberty publicly to express our beliefs and opinions on social media without censorship. The right to privacy, on the other hand, entrenches the right to have our personal information protected from unlawful disclosures, including by online publication. The question that arises is how to reconcile these competing ideals in the context of so-called ‘free speech’ posts wherein the personal information of another is disclosed.

Since the rise of social media, law-makers and the judiciary alike have grappled with the question of how to regulate and give effect to our constitutional rights in the terrain of online publication. In the recent case of Smuts and Another vs Botha, the Supreme Court of Appeal ruled that where a person by their own actions exposes their personal information in the public domain, such information ceases to fall under the protection of the right to privacy and can be published online by another party in the exercise of their right to freedom of expression.

In this case, a group of cyclists were given access to Mr Botha’s farm for an adventure race organized by a third-party organization. During the ride across the farm, one of the cyclists taking part in the race came across two cages containing a dead baboon and a dead porcupine. Angered by what he saw, he photographed the scene and sent the pictures to Mr Smuts, an avid wildlife conservationist and advocate for indigenous wildlife protection. After a brief WhatsApp exchange in which Mr Botha confirmed that he had a valid permit to hunt, capture and/or kill the animals in question; Mr Smuts then published his opinion on what he regarded as unethical animal trapping practices by Mr Botha on Facebook. In doing so, he made reference to Mr Botha’s personal information, including the name and location of the farm, as well as the name of his business. The post generated considerable interest, with the vast majority of the comments being slanderous, insulting, or suggesting a boycott of Botha’s business.

Mr Botha sought an urgent interdict from the High Court of the Eastern Cape Division on the basis that his right to privacy had been infringed. The court ruled that the name of the farm and Mr Botha’s identity constituted personal information, and as such were protected by his Constitutional right to privacy.

The matter was subsequently taken on appeal to the Supreme Court of Appeal by the publisher of the post, Mr Smuts. In defense of his right to freedom of expression, he relied on the judgment of the Constitutional Court in Islamic Unity Convention v Independent Broadcasting Authority, where the court had quoted from a decision of the European Court of Human Rights, emphasizing the importance of free speech:

the public interest in free speech applies ‘not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb…Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”’.

The Appeal Court agreed with this line of reasoning and ruled in favour of Mr Smuts’ right to freedom of expression. In doing so, the following salient principles emerged:

  • While recognizing that a person’s right to privacy ought not to be limited without solid and well-reasoned grounds, the question, ultimately, is whether a person’s expectation of privacy is objectively reasonable in the specific circumstances.
  • In applying this standard to the present set of facts, the court took into consideration that Mr Botha placed his identity and information relating to his farm in the public domain himself, when he allowed members of the public access to his property without hiding his practice of animal trapping. It ruled that by doing so, he had ‘weakened’ his right to privacy by his own actions.
  • The court also considered whether the disclosure of the personal information was necessary to achieve the objectives of the post. The purpose of Mr Smuts’ post was to draw attention to and ‘call out’ the practice of animal trapping, and it found that this falls within the ambit of the right to freedom of expression. The court found that it was not possible to achieve the aim in question without also naming Mr Botha’s farm and business.

In the judgment, a plethora of questions have been raised about the relationship between the right to privacy and the right to freedom of speech.

  • On a practical level, the concept of how and when one may be considered to have placed ‘information in the public domain’ is not clearly defined. Elaborating on the idea that Mr Botha weakened his right to privacy by exposing his information to the public domain, the Court considered that information concerning himself and the farm could easily also be found in the Deeds Office, as well as on Google. The idea that having a property registered in your name at the Deeds Office constitutes ‘publication’ of this fact is arguably problematic. While ‘open’ to the public, the Deeds Registry is an official register and should not, we submit, be regarded as ‘general knowledge’ which has been made available to the public It is possible to conclude that if one’s personal information can be accessed by the public on Google, that it is ‘fair game’ for a third party to reference it in a free speech post, which is of concern. The Court does not clearly distinguish between personal information that comes to light when someone uses a search engine, when they obtain information through an external source that is not easily accessible (such as the Deeds Office). Consider a scenario where intimate details of your financial affairs appear in papers filed in the High Court and are referenced in the reported judgment, which can be accessed by the public via a search engine. If the definition of ‘publication’ as adopted by the Court in this sense is applied, it is possible that publication in another forum by another party is justified, on the basis that you have weakened your right to rely on the privacy, by placing such information in the public domain. The rationale for the judgment is seemingly premised on the idea that information which a person has allowed to reach the public domain is unlikely to then be protected by the right to privacy. The vexed question is whether a distinction should be drawn, and if so, how it should be done, between information that entered the public domain through one’s own actions, and that which has not.
  • One cannot escape the impression, on reading the judgment, that the issue at hand, namely animal trapping and the morality thereof, played a role in the court’s findings.  Section 2(j) and (k) of the Animals Protection Act makes animal trapping legal, provided that certain conditions are complied with. According to Mr Botha, he complied with these provisions and no evidence to the contrary was led. The language used by the Supreme Court of Appeal in their discussions about animal trapping practices is strikingly emotive and openly disapproving. The question arises as to why the court did not address the continued existence of the legislation that permits these practices. There does not appear to be anything that might have prevented the court from commenting on the fact that this legislation (still valid sixty years post-promulgation) is out of line with public policy and the general boni mores, and referring the matter to the relevant government department for consideration.

What are the practical implications of the judgment?

  • In order to have a social media post that discloses your personal information removed, you might be required to show that, prior to the disclosure, such information has been withheld from the public in general.
  • If you intend to publish a ‘free speech’ post, you can be reassured that it is not per se unlawful to reference another person’s personal information in the post. It may, however, be necessary to prove that there is a rational link between the disclosure of such information and what the post aims to achieve.

It remains to be seen how these principles will play out in practice. Can a person aggrieved by a contentious piece of artwork in an Airbnb rental, disclose the intimate personal details of the host and their home, in a social media post made in protest? Are the personal affairs of the owners of small home businesses, such as daycares and home-based beauty salons, now open to public scrutiny? What about a post condemning your hairdresser for bad parenting because you see her 17-year old drinking on the premises, or the day care mother for the quality of petfood that she gives her animals?

In a space where free speech reigns with considerable uncertainty, it is clear that the law has not yet had its final say.

Read the article on the Without Prejudice website