SAIFAC WEBINAR: Exploring the Tension between Freedom of Expression and Privacy: Reflecting on Botha v Smuts
Date: Tuesday, 18 March 2024
Time: 17h00 – 18h30 (South African Standard Time – GMT Plus 2)
Venue: Microsoft Teams Meeting – RSVP for link
RSVP: Please RSVP to naomi@saifac.org.za (please note that you are encouraged to RSVP at your earliest convenience).
About the event:
South African Human Rights Day, celebrated annually on the 21st of March, commemorates the killing (of 69 people) and wounding (of 180 people) of unarmed protestors against the oppressive pass laws by the South African police. Today, it honours the sacrifices made by those who fought for fundamental rights and reaffirms the nation’s commitment to those rights. In commemoration of this important day, the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (a Centre of the University of Johannesburg) invites you to an online webinar titled “Exploring the Tension between Freedom of Expression and Privacy: Reflecting on Botha v Smuts”. This webinar will explore the relationship between the right to privacy and the right to freedom of expression in the context of advocacy against behaviour by private individuals that evokes moral outrage. At what point does the freedom to expose what one party regards as a moral outrage conflict with the right to privacy of the other party?
The Panel:
· Moderator: Nicholas Herd (Researcher at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law (SAIFAC), University of Johannesburg)
· Ben Winks (Member of the Johannesburg Bar; former law clerk to Justice Skweyiya and Acting Justice Mthiyane of the Constitutional Court of South Africa)
· Nicola Irving (Associate in the Public Interest Department at Norton Rose Fulbright Inc; and Vice Chairperson of the Environmental Law Association of South Africa)
· Phenyo Sekati (Candidate Legal Practitioner at Power Inc; and former law clerk to Justice Majiedt of the Constitutional Court of South Africa)
Description of subject:
The recent Constitutional Court decision in Botha v Smuts concerned the posting on social media of photographs and details of a business and home of a person responsible for trapping animals on their property. During a lawful ride across a farm of Mr Botha, a cyclist encountered a dead baboon and porcupine in traps set for the purpose. The cyclist, being extremely distressed at what he saw as a shocking case of animal cruelty (with the animals having starved or dying in distress), emailed Mr Smuts – an activist who campaigns against animal cruelty – with photographs of the trapped, dead animals; and a map showing the location of the farm. Mr Smuts then obtained personal details of Mr Botha and details of his insurance business. Mr Smuts proceeded to publish on Facebook:
(1) the photographs of the trapped animals;
(2) a Google search location of location of Mr Botha’s insurance business (which was also his residential address); and
(3) the contents of a WhatsApp conversation between Mr Smuts and Mr Botha.
Mr Botha then sought an interdict to have the social media posts deleted, and litigation ensued which eventually reached the Constitutional Court ensued.
In deciding the case, the Court split into four judgments, for the most part without a majority in the reasoning. This in itself suggests this was a matter of great complexity, raising vexed and difficult questions about the ambit of the respective rights. The court was divided on the basis of whether Mr Botha’s home address was, on balance, protected as private; whether he had a reasonable expectation of privacy in respect of his ownership and control of the farm, and in relation to whether it was permissible to release the information concerning his business.
This webinar will critically assess the reasoning in the case and its implications. Questions that will be considered include the following:
1. Does the decision set any principled precedent that would bind future courts?
2. What effects is the judgment likely to have on advocacy in the democratic sphere by individuals who wish to expose moral wrongs that take place in the private sphere such as cruelty to animals or environmental wrongdoing?
3. Did the court articulate a coherent legal framework to address the balance between the right to privacy and freedom of expression?
4. Mr Botha’s insurance business and home address were the same: which of the judgments was correct in how this fact should be treated? Does the judgment effectively insulate private parties from criticism when they work from home?
5. How does this judgment square with other recent judgments of the Constitutional Court recognising the value of activism and that such expression should not be subjected to threats such as SLAPP suits?
6. Did the judgments adequately grapple with the context of animal cruelty which often takes place within the private sphere? Was this context lost by most of the judges and, so, will this judgment effectively hinder exposure of such harms in the future – such as where cruelty on an industrial scale takes place (in the production of meat products, for instance)?
7. Is the reasoning in the judgment congruent with the provisions of the Protection of Personal Information Act 4 of 2013?
8. What are the implications, if any, for how users interact online in the digital age?