Everyone who uses social media could be affected by a case to be argued at the Constitutional Court later this month.
It concerns Bool Smuts, an animal rights and environmental activist who, in October 2019, posted photographs on Facebook showing a dead baboon and a dead porcupine trapped in cages on an Eastern Cape farm owned by Herman Botha. The photos were taken by a cyclist who rode through Botha’s farm.
Appalled by what he saw, the cyclist gave them to Smuts, who reposted the photographs on Facebook, adding other information — the name of Botha’s farm, his home and business address (he works from home) and his phone number. Smuts also commented in the post that such killing of wild animals is “unethical, barbaric and utterly ruinous to biodiversity”.
Botha applied for an urgent interim court order to stop Smuts from publishing “defamatory statements” about him, and Smuts was ordered to take down the information about Botha’s business, its location and the farm’s name. This order was later confirmed when the Gqeberha high court held that though the original photographs of the trapped animals could be published, Botha’s privacy rights meant Smuts could not publish Botha’s personal information.
In January 2022, five judges of the Supreme Court of Appeal unanimously overturned this high court decision, finding that free speech rights around a contested issue of great public concern such as this had to trump Botha’s privacy rights, particularly where, as in this case, that information was already in the public domain.
Botha applied for an urgent interim court order to stop Smuts from publishing ‘defamatory statements’ about him
But Botha, unhappy with the outcome, took the issue further and his appeal to the Constitutional Court is scheduled for next week.
Botha’s position is that he is acting lawfully and has permission to trap an “unlimited” number of wild animals such as baboons. But the Facebook posts infringed on his privacy, exposing him to threats from the public and affecting his insurance business. He agrees that the trapping of animals is a contentious issue around which there is legitimate public debate, but in his view it wasn’t lawful to publish his details in connection with the debate.
Smuts says his problem is with the ethics, rather than the lawfulness, of Botha’s actions and that his Facebook comments are protected speech on a legitimate issue of great public interest. He says Botha makes no secret of his use of animal traps. It is true and undisputed. But at the same time, he wants to avoid being linked in the public mind to the practice of trapping, because that causes him to suffer prejudice.
For Smuts, the fact that Botha had himself put his contact details on the internet means this information was already in the public domain, and it thus wasn’t unlawful for it to be published via a social media post.
As part of his written submissions filed with the court, Botha says the use of personal information for “public vilification” is “particularly pernicious in the age of social media”. He also asks the court to consider whether the Facebook post amounted to “doxxing”, a form of cyberbullying in which someone’s private information is circulated on the internet to embarrass and victimise them.
In Botha’s view, the Facebook post shouldn’t have identified anyone and could have used “pseudonyms” instead of his real name and that of his farm. He says Smuts wasn’t even entitled to publish the fact that the photographs were taken on his (Botha’s) farm. That was “personal information” protected by his privacy rights.
True, some of his contact details had been published on the internet, but this was for business purposes, while the republication of the information by Smuts was “aimed at the very opposite result”, namely to harm Botha’s business because of Smuts’s advocacy around animal trapping.
You might have strong views about environmental destruction, or maybe it’s the need for farmers to “eradicate vermin” that you feel strongly about. But whatever the issues on social media you comment on, you’ll need to know the outcome of this case.
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