In Botha v Smuts, the court ordered Smuts to take down parts of a Facebook post containing Botha’s personal information. The post had an image of Botha with his minor child, details about his business and his address. The court held that Smuts infringed Botha’s right to privacy when he published Botha’s personal information on Facebook without Botha’s knowledge or permission. The court said that although Botha’s information was publicly available through a Google search, Botha would not have expected anyone to misuse his personal information by publishing it on a social media platform without his knowledge or permission.
Who should care about this judgment and why?
- Lobby groups and activists because you must lobby and champion your causes responsibly and without infringing on people’s privacy rights.
- The public because you should not share someone’s personal information without their permission. Especially when you don’t know how someone else is going to use this information.
What could you do about it?
- Learn how to comply with privacy and data protection laws by joining a programme.
- Learn more about the POPIA rules of procedure for submitting complaints to the regulator by reading our post on it.
- Dive into the detail by reading the full judgment.
- Access other relevant judgments by joining a Michalsons programme.
Our insights on the judgment
A constitutional right to privacy
This judgment touches on many aspects of privacy and using social media responsibly. The judgment very clearly demonstrates that courts will always give effect to a person’s right to privacy because these rights are protected by the Constitution.
A data subject can decide how their personal information may be used
In the National Media Ltd v Jooste judgment, we saw how the court held that a person has the right to determine what information they consider as private. A person can also decide the conditions under which someone can publish their information. It was the very same in this judgment. If a person’s personal information is available on a public platform, it does not mean that someone can publish it on other public platforms for their own purposes. You must have permission from a data subject to publish their personal information. You could be held liable for any harm that results from publishing someone’s personal information without their knowledge or permission.
Consider the impact of sharing someone’s information
People should make sure that they have permission to hand out someone’s personal information like a cellphone number. In this judgment, Smuts flouted many data protection laws with just a name and cellphone number in hand. Rather be responsible and give out information lawfully. For example, you may give out information to someone with authority like an official conducting an investigation. It also wouldn’t hurt to ask for someone’s permission before handing out their information to another person. You should get permission, especially if you don’t know why someone is looking for another person’s personal information or how they plan to use it.
While anyone has the right to lobby and champion causes that they are passionate about, it does not give them the right to exploit another person’s personal information by publishing it on social media platforms without their permission. They will face civil action just as demonstrated in this judgment.
Complaints to the regulator
The information regulator published rules on the procedure a complainant should follow to submit a complaint to them. The rules set out detailed information on how the regulator will handle complaints. Although the rules are not in operation yet, it demonstrates that the information regulator is paving the way for complainants to submit a complaint to them if their privacy rights have been infringed. Therefore, people need to be more cautious when they work with personal information. There are severe consequences for flouting data protection laws because people can suffer harm if you fail to protect their personal information or if you fail to use it responsibly.
Digest
Louw found two carcasses in cages on a farm while he was cycling. One carcass was of a baboon, and the other of a porcupine. Louw took photos of the animals and sent them to Smuts who is the director of a conservation NGO.
Smuts made some enquiries to identify the farm owner where Louw found the carcasses. When Smuts identified Botha as the farm owner, he ran a Google search using his name and found his address and cell phone number. Smuts contacted Botha via WhatsApp to ask hm if he had a permit to trap animals. Botha confirmed that he had a permit to trap and kill any number of baboons and porcupine.
Smuts posted an image of his Whatsapp chat with Botha on the NGO’s Facebook page. He also posted Botha’s Whatsapp profile photo, and a Google map image of Botha’s farm to Facebook. The Whatsapp photo was of Botha and his minor child. Thereafter, several members of the public posted defamatory comments on the post.
Application to court
Botha applied to court for an order that Smuts must remove a Facebook post. Botha claimed that the post undermined his reputation, had the potential to harm his business and endangered his family. Smuts wanted to exercise his right to freedom of expression and fair comment. He considered animal trapping issues as a matter of public interest. He said he was not responsible for the harsh comments from the public on Facebook. Smuts also claimed that the information he published on Facebook (Botha’s Whatsapp photo, his ownership of the farm) was in the public domain. He did not view this information as private.
The court discussed a person’s constitutional right to privacy and the right to freedom of expression. The Court held that Smuts got Botha’s address through someone in the area and not through a Deed Registry search. The same person gave Botha’s cellphone number to Smuts. This was how Smuts got Botha’s Whatsapp photo. The court said that Botha’s information from a Google search and information about his farming practices was not meant for others to publish on a platform like Facebook.
Order
The court granted the order to Botha with some amendments. The court allowed certain parts of Smuts’ post to remain. For example, photographs of the carcasses with Smuts’ comments on animal trapping practices. The court ordered Smuts to remove certain parts of the post from his NGO’s Facebook page that had Botha’s personal information such as:
- Botha’s Whatsapp profile photo and any reference to Botha’s name, his insurance business, and its location.
- The names of Botha’s farm and his family.
Details of Botha v Smuts
- Universal citation: [2020] ZAECPEHC 19
- Case number: 2832/2019
- Full name: Botha v Smuts and Another
Please note: The summary of this judgment is not intended for a general audience. It is specifically drafted for the members of the Michalsons Data Protection programme.
