The tension between the Right to Privacy and the right to Freedom of Expression

Section 14 of the 1996 Constitution of the Republic of South Africa provides for an express and justiciable Right to Privacy. Section 16 deals with Freedom of Expression.

A person has the subjective expectation of privacy that society recognizes as objectively reasonable. However, there is a fine balancing act between the Right to Privacy and the right to Freedom of Expression.

The Supreme Court of Appeal (the SCA) dealt with this conflict in Smuts and Another v Botha Smuts and Another v Botha.

Smuts published personal and private details of Botha on a Facebook page regarding certain animal trapping practices employed by Botha. Smuts regarded the practices as unethical and after a WhatsApp engagement with Botha published on Facebook pictures of Botha and personal information relating to Botha and Smuts’ views on these practices.

The SCA had to decide if Botha was entitled to an interdict removing the posts.

In paragraph 8 of the judgement, the Court set out the present state of the Law of Privacy in South Africa.

The right to 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 away from prying eyes. Another individual or group does not have the right to ignore his wishes or to be disrespectful of his desire for privacy without a solid and reasoned basis”.

In dealing with the conflict between the right to privacy and the right to freedom of expression the Court found that Botha’s subjective expectation of privacy must be approached from a people-centred perspective. It found that the publication of information relating to animal trapping was in the public interest.

The Court held that it had to strike a balance between the right to privacy and the right to freedom of expression. It held that in this matter the right to freedom of expression i.e., the disclosure of unethical animal trapping practices trumps the right to privacy.

The Court concluded:

“In these circumstances, the test is not whether Mr Smuts could have posted more cautiously, the question is whether Mr Botha had any claim to privacy in respect of the information posted. His claim, as I have explained, was weak.”

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