Testing the limits of the Protection of Personal Information Act 4 of 2013 (POPIA)

17 Feb 2022

The movement towards data protection and data privacy has been topical internationally. For example, in South Africa, POPIA regulates the lawful processing of personal information as the General Data Protection Regulation (“GDPR”) regulates Europe.

In countries like South Africa, the courts play a pivotal role in developing the practicalities and application of law in a societal context. It is therefore prudent to mention the principle of stare decisis. It is a juridical command to the courts to respect decisions already made in a given area of the law. This means that a decision of the highest court binds the application or interpretation of the lower courts.

The Supreme Court of Appeal, or SCA, is the highest court in South Africa. Only lower than the constitutional court. As such, the decision of Bool Smuts and Another v Herman Botha (887/20) [2022] ZASCA 3 (handed down 10 January 2022) is noteworthy as the first glimpse of the potential limitations of POPIA.

Facts of the Bool Smuts and Another v Herman Botha

On 23 September 2019, in the early morning hours, a group of cyclists participated in an adventure ride organised by Quantum Adventure. They traversed the farm Varsfontein belonging to the respondent, Mr Herman Botha (Mr Botha). Nicholas Louw, one of the cyclists, noticed two cages on the farm, one containing a dead baboon, the other a dead porcupine. He took photographs of the dead animals’ cages and sent them to the first appellant, Mr Smuts, a wildlife conservationist and activist. He is also the founder and executive director of the second appellant, Landmark Leopard and Predator Project–South Africa (Landmark Leopard).

Upon receiving the photographs, Mr Smuts contacted Mr Botha via WhatsApp, and Mr Botha confirmed that he had a valid permit to hunt, capture and kill the baboons, porcupines and other vermin. On 9 October 2019, Mr Smuts posted pictures of the dead baboon and porcupine trapped on the farm owned by Mr Botha on Landmark Leopard’s Facebook pages. On his Facebook page, Mr Smuts also included a picture of Mr Botha holding his six-month-old daughter. Additionally, he posted a Google Search Location of Mr Botha’s business, his home address, and telephone numbers. A WhatsApp conversation between Mr Smuts and Mr Botha was also posted. In that post, Mr Botha was asked by Mr Smuts if he had a permit to trap animals, to which he responded in the affirmative.

The post generated many comments on Facebook, primarily critical of Mr Botha and the particular practice of trapping animals. Unhappy with the posts and the publicity it generated, Mr Botha instituted an urgent application in the High Court of the Eastern Cape Division, Port Elizabeth (the high court) for an interim interdict prohibiting Mr Smuts and Landmark Leopard from publishing defamatory statements about him. The judge granted a rule nisi. Mr Smuts and Landmark Leopard were ordered to remove the photographs of Mr Botha and certain portions of the Facebook that referred to Mr Botha, his business, its location and the name of the farm. Mr Smuts and Landmark Leopard were also prohibited from making further posts referring to Mr Botha, his family and his business. Mr Smuts removed the photograph of Mr Botha and his daughter before the interim order was granted.

The legal questions

The question to be answered is whether the publication of Mr Botha’s personal information, such as Mr Botha’s identity and his business and home address, enjoys the protection of the right to privacy.

This issue raises several related questions:

• First, whether it is in the public interests that the personal information of Mr Botha is published.
• Second, whether Mr Smuts could inform the public about Mr Botha’s farm activities without disclosing his personal information; in other words, was it in the public interest to know the exact location of Mr Botha’s farm?
• Third, was the high court correct in emphasising Mr Botha’s personal information, although this was already in the public domain.

The competing constitutional rights are the right to privacy versus the freedom of expression. In Bernstein and Others v Bester NO and Others (CCT23/95) [1996] ZACC 2; 1996 (4) BCLR 449; 1996 (2) SA 751 (27 March 1996):

“A legitimate expectation of privacy has two parts: ‘a subjective expectation of privacy… that society has recognised… as objectively reasonable’.

In Bernstein v Bester, the Constitutional Court said the following:

‘The scope of privacy has been closely related to the concept of identity, and it has been stated that “rights, like the right to privacy, are not based on a notion of the unencumbered self, but on the notion of what is necessary to have one’s own autonomous identity”.

In South African National Defence Union v Minister of Defence (CCT27/98) [1999] ZACC 7; 1999 (4) SA 469; 1999 (6) BCLR 615 (26 May 1999), the Constitutional Court stated that:

‘Freedom of expression lies at the heart of a democracy. It is valuable for many reasons, including its instrumental function as a guarantor of democracy, its implicit recognition and protection of individuals’ moral agency in our society, and its facilitation of the search for truth by individuals and society generally. The Constitution recognises that individuals in our society need to be able to hear, form and express opinions and views freely on a wide range of matters.’

Findings

Mr Botha’s personal information was in the public domain before Mr Smuts published the posts. His ownership of the farm Varsfontein was a matter of public record in the Deeds Registry; his name and occupation as an insurance broker and his Port Elizabeth address had been published on the internet by Mr Botha himself; thus, his right to privacy was not infringed.

Conclusion

Information already in the public domain cannot be protected under the constitutional or legislative rights to privacy. However, in most instances, sharing views concerning ethics or expressing an opinion on information in the public domain encompasses the right to freedom of expression. Therefore, it is of the utmost importance to carefully consider the information you make available, or have a sound knowledge of what is publicly available.

Ensure that your practice remains compliant to avoid the impacts of poor media or press.

Consider regulating the terms of using the information or opinions when allowing the public access to your property or information, or restrict the ability of photographs as part of terms of engagement at the start.

Contact an attorney at SchoemanLaw for assistance with all your data and privacy law needs.

See also:

• Maintaining compliance with the Protection of Personal Information Act (POPIA)
• LSSA publishes POPIA guide for attorneys
• The POPIA prior authorisation conundrum – What is prior authorisation, and do you need it for your business?
• Registration of an Information Officer under PAIA and POPIA – Deadline looming….

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)