| Authority: | High Court |
|---|---|
| Jurisdiction: | South Africa |
| Type: | Violation |
| Relevant law: | Right to Privacy, South African Constitution |
| Outcome: | Violation |
| Started: | 2019 |
| Decided: | 4 June 2020 |
| Published: | 4 July 2020 |
| Fine: | N/A |
| Parties: | Herman Botha v Bool Smuts and Anor |
| Case No.: | 2832/2019 |
| Appeal: | Botha vs. Smuts & Another |
| Original Source: | SAFLII |
| Original contributor: | MZIZI Africa |
Contents
The court directed Bool Smuts (the “1st Respondent”) to remove segments of a Facebook post featuring Herman Botha's (the “Complainant”) personal data, including a picture of the Complainant with his minor child, business particulars, and his address. It ruled that the 1st Respondent violated the Complainant's privacy rights by posting this information on Facebook without his consent. Despite the information being publicly accessible through Google, the court reasoned that the Complainant did not anticipate its unauthorized use on social media without his approval.
A Mr. Nicholus Louw discovered two carcasses, one of a baboon and the other of a porcupine, on a farm during his cycling trip. Louw then communicated his findings to Bool Smuts, the 1st Respondent and a director of a conservation NGO, by sending him photos of the animals.
The 1st Respondent identified the Complainant as the farm owner through enquiries and a Google search, obtaining his address and cellphone number.
The 1st Respondent then contacted Botha via WhatsApp to inquire about his permit to trap animals, to which the Complainant confirmed having a permit.
The 1st Respondent posted the WhatsApp conversation with the Complainant, the Complainant's WhatsApp profile photo, and a Google map image of The Complainant’s farm on the NGO's Facebook page.
The Complainant sought a court order to have the Facebook post removed, citing damage to his reputation, business, and family's safety, while the 1st Respondent defended his right to freedom of expression and claimed public interest in the matter.
The court deliberated on The Complainant's right to privacy and the 1st Respondent's right to freedom of expression, concluding that some of the information obtained by the 1st Respondent was not intended for public dissemination.
The court approved Botha's request with modifications. While allowing certain elements of Smuts' post to stay, such as the photos of the carcasses accompanied by comments on animal trapping practices, the court instructed Smuts to take down specific sections containing Botha's personal details from his NGO's Facebook page. These included Botha's WhatsApp profile picture and any mentions of his name, his insurance business, and its whereabouts, as well as the names of Botha's farm and his family.
The ruling is attached.