Constitutional: Facebook privacy rights case dismissed

The right to privacy where certain information is already in the public domain, against the right to freedom of expression, came under the spotlight in the Constitutional Court, when an insurance broker complained about his private information – including his home address – being published on social media. A Cape Times report says this issue has been determined by the High Court, the SCA and ultimately landed in the apex court. Eastern Cape farmer and insurance broker Herman Botha was livid after conservationist Bool Smuts posted pictures of dead (caged) animals on Facebook. Also included were Botha’s details, such as where he lived. Botha turned to the Eastern Cape High Court (Makhanda) and obtained an interim interdict against Smuts from publishing his details online. Smuts, in turn, approached the SCA. Five judges ruled in his favour and ordered that the interdict had to be lifted. The judges reasoned that while the right to privacy was important, there were occasions that the public interest prevailed.

Botha, unhappy with this verdict, turned to the Constitutional Court to appeal the SCA’s decision, notes the Cape Times report. Smuts argued for freedom of expression based on public interest. Botha did not challenge Smuts’ constitutional right to post the photographs (except for one depicting his daughter which by then had been removed) and express his view on trapping. He accepted that the publication of the post may have been in the public interest, but he challenged Smuts’ right to use his personal information to link him to the post on the basis that this would unjustifiably infringe his right to privacy. The Constitutional Court’s findings on the matter produced four judgments on the various issues. The effect of these judgments is that seven of the judges found that Botha’s information regarding the ownership and control of his farm and his insurance brokerage address are not private, and therefore, the appeal was dismissed.