In the recent case of Smuts and Another vs Botha, the Supreme Court of Appeal ruled that where a person by their own actions exposes their personal information in the public domain, such information ceases to fall under the protection of the right to privacy and can be published online by another party in the exercise of their right to freedom of expression. Since the rise of social media, law-makers and the judiciary alike have grappled with the question of how to regulate and give effect to our constitutional rights in the terrain of online publication. The question that arises is how to reconcile these competing ideals in the context of so-called ‘free speech’ posts wherein the personal information of another is disclosed. The right to privacy, on the other hand, entrenches the right to have our personal information protected from unlawful disclosures, including by online publication. In theory, the constitutional right to freedom of expression means that we are at liberty publicly to express our beliefs and opinions on social media without censorship. The very fabric of public exchange has bound itself to these platforms in such a way that the dissemination of ideas, knowledge and basic communication is now increasingly reliant on the online ‘communities’ that operate in this space.
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