A clash of freedoms

By Anton Katz SC

A key feature of the law is to protect freedom. Freedom of the individual and freedom of groups of persons.

Every time the freedom of one person or group is respected and protected it goes without saying that the freedom of another is affected and impinged upon in some way. And that applies to all freedoms and rights. A recent real-life dispute between two individuals put that clash into sharp focus. On the one hand a farmer asserted his right to privacy whereas in contrast, an animal rights activist sought to protect his right to freedom of expression.

What is privacy? Are there different zones or levels of privacy? And when can a person’s right to privacy be held to be violated? And if a person’s privacy is violated, what is the appropriate remedy? These issues arose involving a Facebook post by Bool Smuts about a privately owned commercial farm in the Eastern Cape run by Herman Botha, an insurance broker.

Smuts is a wildlife conservationist and activist who for 17 years was a leader in efforts to promote the conservation of indigenous wildlife in South Africa. He posted, together with photos of Botha’s farm, on Facebook, “While we spend our efforts trying to promote ecologically acceptable practices on livestock farms to promote ecological integrity and regeneration, we are inundated by reports of contrarian practices that are unethical, barbaric and utterly ruinous to biodiversity. These images are from a farm near Alicedale in the Eastern Cape, owned by Mr. Herman Botha of Port Elizabeth who is involved in the insurance industry. The farm is Varsfontein. This is utterly vile. It is ecologically ruinous. Mr. Botha claims to have permits to do this — see the Whatsapp conversation with him attached. The images show a trap to capture baboons (they climb through the drum to get access to the oranges — often poisoned — and then cannot get out). See the porcupine in traps too. Utterly unethical, cruel and barbaric.”

Smut’s post generated many comments on Facebook. Most were critical of Botha and his conduct. People who viewed the post posted slanderous and insulting comments about Botha. One suggested that, ‘he should be in that cage’ and another suggested that Botha should be ‘paid a visit’. And another suggested that Botha’s business should be boycotted and a campaign launched to name and shame him and his insurance brokerage business. On his Facebook page, Smuts included a picture of Botha holding his six-month old daughter, and a Google Search Location of Botha’s business, his home address and his telephone numbers.

Botha approached the Courts seeking an urgent order against Smuts interdicting Smuts from defaming him. He complained that his constitutional right to privacy was violated and infringed by Smuts’s Facebook posts. The High Court held that the name of the farm and Botha’s identity were personal information protected by his right to privacy. The High Court ordered the removal of the photographs of Mr Botha and references to him, his business, its location and the name of the farm.

Mr. Smuts appealed to the Supreme Court of Appeal (SCA). He claimed his right to freedom of expression was violated by the order compelling him to remove or amend his Facebook post.

The SCA dealt in detail with the right to privacy. Privacy is a fundamental right that is protected under the Constitution. It is a right of a person to be free from intrusion or publicity of information or matters of a personal nature. It is central to the protection of human dignity, and forms the cornerstone of any democratic society. It supports and buttresses other rights such as freedom of expression, information and association. It is also about respect; every individual has a desire to keep at least some of his/her information private and shielded from prying eyes.

Another individual or group does not have the right to ignore a person’s wishes or to be disrespectful of the desire for privacy without a solid and reasoned basis. The scope of privacy has been closely related to the concept of identity and it has been stated that “rights, like the right to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessary to have one’s own autonomous identity”. Privacy enables individuals to create barriers and boundaries to protect themselves from unwarranted interference in their lives. It helps to establish boundaries to limit who has access to their space and possessions, as well as their commercial and other information. It affords persons the ability to assert their rights in the face of significant imbalances. It is an essential way to protect individuals and society against arbitrary and unjustified use of power, by reducing what can be known about, and done to them.

But the Court went on to repeat the truism that no right is to be considered absolute; and that implies that from the outset of interpretation each right is always already limited by every other right accruing to another citizen. The right to privacy is not sacrosanct, it must be balanced with the rights of other citizens. In the context of privacy this would mean that it is only the inner sanctum of a person, such as his/her family life, sexual preference and home environment, which is shielded from erosion by conflicting rights of the community. This implies that community rights and the rights of fellow members place a corresponding obligation on a citizen, thereby shaping the abstract notion of individualism towards identifying a concrete member of civil society. Privacy is acknowledged in the truly personal realm, but as a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks.

The Appeal Court ultimately ruled that the identity of Botha and his farm are matters that he permitted to be placed in the public domain. So too are his practices of animal trapping; he openly admitted his use of animal traps. No effort was made by him to keep this information or his activities private. His discomfort that these practices formed the subject of Smuts’ critical posts did not render the information he had made public, now private. The commercial farming activities of Botha and the practices used by him to carry out these activities carry a very modest expectation of privacy from the perspective of what society would consider reasonable. The use of animal traps in the course of a commercial farming operation are conducted in public and thus fall outside the realm of protected privacy. The Court concluded, “What is damning for Mr Botha is that he makes use of animal traps openly where hunters and cyclists have access.”

Smuts’ right to freedom of expression and the public’s right to receive the information easily overrode Botha’s right to privacy. The Facebook post were allowed to remain. The clash of freedoms resolved in this case by expression winning against privacy.

Anton Katz is a practising Senior Counsel, former United Nations special rapporteur on mercenaries and human rights, former Acting High Court Judge, and an admitted attorney in New York. He was born and raised in Sea Point.

Published in the PDF edition of the Pesach/April 2022 issue – Click here to get it.

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