After the Bell: What is the connection between baboons and your right to privacy?

27 Oct 2024

There is an old legal maxim that hard cases make bad law. And saying it’s an old maxim is understating it. The earliest recorded usage of the phrase in a court judgment was in 1904 when famous US jurist Oliver Wendell Holmes said it in such a way that suggested even then it was pretty well known.

Holmes explained that great cases (like hard cases) make bad law because “great cases are called great, not by reason of their importance ... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment”.

The case he was presiding over was a dissenting opinion in the application of the Sherman Antitrust Act that then-President Theodore Roosevelt had used to dramatise the issue of monopolies and trusts.

Essentially, he was arguing that in cases where emotions run high, it’s easy to lose track of the precise legal issues that underlie the circumstances of the case at hand.

In this vein, my eye was caught recently by a Constitutional Court judgment in the case of Botha vs Smuts and another which was handed down a few weeks ago. At first, I thought, what an amazing turn of history. How things have changed between the descendants of the two Boer War generals, who were comrades in arms and lifelong friends!

But actually, the case is interesting for completely different, and much more modern, reasons. It concerns the legality of doxxing someone on Facebook; the finding of the court really couldn’t be more complicated. There are four separate judgments in the case. I am not making this up.

A case with quite some needle

By contrast, what actually happened was pretty simple: a cyclist took part in an authorised cycle ride on the farm of Herman Botha and encountered a dead baboon and a dead porcupine in cage traps. Outraged, he took photographs (I think it’s safe to say the photographs are pretty grim) and sent them along with a map indicating the location of the farm to Bool Smuts, who then smashed them on to Facebook. The post included the address of Botha’s business, which happened to be the same address as his home address. Clearly, there was some needle here, as you might expect.

It will surprise exactly no one that the vast majority of the comments were, let’s say, negative in respect of Botha. Botha’s legal team took the case to the high court on an urgent basis, which granted an interim order and final order requiring Smuts to take down the post. That was appealed to the Supreme Court of Appeal, which ruled the highcourt. Botha then approached the Constitutional Court to ask whether he could appeal against this decision.

Ok, so now hold your breath. There were essentially two different issues here: did Smuts breach Botha’s privacy first, by identifying the farm, and second, by identifying his business address, which in this case was also his home address? The legal issue is whether Botha had a subjective expectation of privacy that society has recognised as objectively reasonable. I swear to you, that is the test. Not a simple question.

Privacy test

The first group (four judges) found Botha could not have an expectation of privacy in respect of the farm because it was a commercial farm and because the people pedalling their bicycles there were authorised to be on his property. He also didn’t have an expectation of privacy about his business/home address because he had himself advertised his business and it was clear from his advertising that he wished the world at large to know that he was in the insurance business.

The second judgment (one judge) agreed Botha should lose on the first issue, but disagreed on the second issue. Chaskalson AJ argued that Botha had a subjective and reasonable expectation of privacy in the form of being protected from unwanted harassment at his family home and that, by the time that the interdictory relief was sought, the ongoing publication of Botha’s address threatened to expose him to harassment at his family home.

The third group (two judges) disagreed on this second issue but for different reasons from the first group; mainly that Smuts didn’t realise at the time of posting that he was revealing Botha’s home address. And let’s just keep it simple by saying the fourth judgment (one judge) had procedural issues.

So in the end, the court found against Botha, allowing the appeal and on the arguments, it seems they would find against him if he contested the substantive case. So in these circumstances, the right of freedom of information outweighed the right of privacy, which constitutes a victory for baboon rights organisations.

But given the stress in all the judgments on the authorised nature of the cycle ride, you have to ask what the outcome would have been if it had not been authorised. I think reading between the lines, it seems the court generally disapproves of doxxing unless the circumstances really do require it, but that bar is not insurmountably high.

Perhaps the real lesson is that if you are going to trap baboons in cages, best not invite anyone on to your farm. DM

Legal details corrected

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Business Maverick

A case with quite some needle

Privacy test