To post or not to post? When is privacy violated?

21 March 2022 319
Your neighbour has been piling heaps of rubbish on his sidewalk. You’ve raised the issue with him but to no avail. Now you’ve taken photos of the mess and want to post them on Facebook to try and get other neighbours to also put pressure on him to clean up the mess. However, you pause and wonder about whether you can post the photos and identify your neighbour. Is it an invasion of privacy, or in the public interest?

Many of us have encountered similar situations in our lives, and quite correctly, it’s not a clear-cut black or white answer as to how to deal with this situation particularly as both the right to privacy and the right to freedom of expression are legally protected rights. 

Sharing the information of others may result in a privacy issue that has legal implications, and understanding what the legal position is in this regard is vitally important so you know whether you can proceed or whether any legal rights may be infringed.

Our Supreme Court of Appeal (“SCA”) quite recently had to consider the tension between these two rights in the case of Bool Smuts and Another v Herman Botha (887/20) [2022] ZASCA 3.

In the case a group of cyclists passed through the farm of a farmer, when they noticed two cages containing a dead baboon and porcupine with the cages positioned where there was no shade or water. The cyclists surmised that the animals died as a result of dehydration while trapped in the cages. One of the cyclists took pictures and transmitted them to a wildlife conservationist. The conservationist in turn posted the pictures, a location of the farmer’s business, his home address, his telephone number and a picture of him with his minor daughter on Facebook.

The farmer instituted an urgent application in the High Court of the Eastern Cape Division (“High Court”) for an interim interdict prohibiting the conservationist from publishing such defamatory statements about him. The interdict was granted, with the High Court reasoning that the farmer had established a clear right to an interdict and that his right to privacy was infringed by the publication of his personal information on Facebook. This finding led to an appeal in the SCA.

Yet, the SCA ruled that there was no basis for upholding the interdict against the conservationist. As a commercial farmer dealing with animal trappings, the farmer had put all of his personal information in the public domain even before the conservationist published the posts. In addition, his ownership of the farm was a matter of public record at the Deeds Registry, whilst his name, occupation and address had been published on the internet by the farmer himself. Thus, his right to privacy was not infringed. The conservationist simply gave further publicity to information about the farmer which was already in the public domain.

It is clear from the SCA judgement that the right to privacy is at its most powerful when the inner sanctum of a person’s life is protected from intrusion. However, as soon as a person moves into the world of communal, business and social interaction, the scope for the exercise of this right, diminishes. As the farmer’s practices carried only a modest expectation of privacy from the perspective of what society would consider reasonable, it could be surmised that the public interest was best served when publicising truthful information, rather than oppressing it.

Personal information also stops being private once released in the public domain by the owner thereof and such an owner cannot rely on his right to privacy when someone publishes such information on Facebook. That said, the publisher will always have to guard against posting possible defamatory statements or face the possibility of charges for defamation. 

In short, one can confirm that the public will generally not be allowed to post personal information of others on platforms such as Facebook without their consent, as this can infringe a person’s right to privacy. However, when personal information is in the public domain or has been released by the owner themselves, the publication of this information by an individual or business will not be regarded as automatically infringing his right to privacy, particularly where the public interest is best served by publicising the information. 

In the scenario of the neighbour, you could argue that as the rubbish is lying on the sidewalk and posts made are not defamatory of the neighbour but relates to the rubbish lying on a public sidewalk, it would not be a breach of privacy to post the photos of the rubbish just because it relates to the neighbour. Additionally, the fact that rubbish should be cleaned and streets kept safe and clean, adds a public interest argument which can also weigh in favour of the right to freedom of expression.

However, we must remember that each set of circumstances are different and no hard and fast rule can be formulated. If in doubt, rather err on the side of caution and do not post, or if truly important, consider obtaining legal advice beforehand to ensure that you don’t trample the right to privacy, of another.
Related Expertise: Consumer Law