Facebook And The Right To Privacy

The Supreme Court of Appeal ("SCA") recently dealt with the tension between the right to privacy and the right to freedom of expression in the matter of Bool Smuts and another v Herman Botha. The SCA made significant findings in this regard, namely that whilst the publication of personal information is generally protected by the right to privacy, in certain instances the right to freedom of expression outweighs the right to privacy. In considering the issues before it the SCA had to make an enquiry, which was whether the publication of personal information in certain Facebook posts was protected by the right to freedom of expression.

The genesis of the dispute is found in a photograph taken by a cyclist on a farm belonging to Mr Botha. On 23 September 2019, whilst traversing Varsfontein farm in an adventure ride, a cyclist noticed two cages containing a dead baboon and a dead porcupine. The cyclist noticed oranges near the baboon and surmised that the animals had