Can what’s already public be private?

Can you claim privacy over information already floating around the internet? That’s the question the Constitutional Court had to tackle when an insurance broker-cum-farmer took issue with his personal details being shared online.

It all started when Herman Botha, a man who juggles spreadsheets by day and farm life by night, hit the roof when conservationist Bool Smuts shared photos of a deceased baboon and porcupine found in cages on his (Botha’s) farm. Smuts, founder of the Landmark Leopard and Predator Project, didn’t stop there. He added Botha’s home address, phone numbers, and even a picture of Botha cradling his baby daughter (which was later removed, thankfully) to the post, branding Botha’s actions “cruel” and “barbaric.” Cue a Facebook comment section that quickly became a cesspit of outrage.

Botha, understandably unimpressed, rushed to court and secured an interim interdict preventing Smuts from posting his details or calling him names. Smuts, however, wasn’t backing down and took the fight to the Supreme Court of Appeal (SCA). The SCA sided with Smuts, reasoning that Botha’s details, such as his farm ownership, were already public knowledge. Privacy is important, the court acknowledged, but in some cases, the public interest wins out.

Still unhappy, Botha took his case to the Constitutional Court, arguing that, while Smuts had a right to share the photos, he shouldn’t have posted personal details linking him to the controversy. After much legal back-and-forth, the court delivered four judgments, with the majority ruling against Botha. The verdict? Information that’s already publicly accessible can’t suddenly become private just because it’s inconvenient.

And so, the case closed, leaving behind an important lesson: when it comes to online privacy, what’s public stays public, whether you like it or not.

You can read the full (and very interesting) Botha v Smuts Constitutional Court judgement here.

Written by Theo Tembo