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THE RIGHT to PRIVACY and IDENTITY on SOCIAL NETWORK SITES: a COMPARATIVE LEGAL PERSPECTIVE by MILTON THEMBA SKOSANA Submitted In

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THE RIGHT to PRIVACY and IDENTITY on SOCIAL NETWORK SITES: a COMPARATIVE LEGAL PERSPECTIVE by MILTON THEMBA SKOSANA Submitted In THE RIGHT TO PRIVACY AND IDENTITY ON SOCIAL NETWORK SITES: A COMPARATIVE LEGAL PERSPECTIVE by MILTON THEMBA SKOSANA submitted in accordance with the requirements for the degree of MASTERS OF LAWS at the UNIVERSITY OF SOUTH AFRICA SUPERVISOR PROFESSOR ANNELIESE ROOS 2016 DECLARATION Student number: 35612053 I, MILTON THEMBA SKOSANA declare that THE RIGHT TO PRIVACY AND IDENTITY ON SOCIAL NETWORK SITES: A COMPARATIVE LEGAL PERSPECTIVE is my own work and that all the sources I have used or quoted have been indicated and acknowledged by means of complete references. _______________________ _________________ Signature Date PREFACE I should like to thank my Heavenly Father for the strength not to give up during the writing of this dissertation. I thank, too, my earthly fathers Flommy and Raynond, for believing in me. My late mother, Dorcas Sisi, you left me at the beginning of this journey, I know how proud you are of me. And to my partner Sonto, I know studies may bring distance in a relationship, but thank you for pushing me to finish. My two lovely sons Ndumiso and Musa, I dedicate this dissertation to your success in your own career paths. And last but not least thank you to Prof Anneliese Roos for her guidance and patience. TABLE OF CONTENT SUMMARY .............................................................................................................................................. 8 List of Abbreviations .......................................................................................................................... 10 Chapter 1 Introduction .......................................................................................................................... 1 1.1 BACKGROUND ...................................................................................................................... 1 1.2 RESEARCH PROBLEM AND PURPOSE OF STUDY ........................................................... 3 1.3 RESEARCH METHOD ............................................................................................................ 3 1.4 PRELIMINARY DEFINITIONS OF KEY TERMS .................................................................... 4 1.5 OUTLINE OF CHAPTERS ...................................................................................................... 6 Chapter 2 Social Network Sites (SNSs) .............................................................................................. 8 2.1 INTRODUCTION ..................................................................................................................... 8 2.2 A BRIEF HISTORICAL BACKGROUND OF THE DEVELOPMENT OF SNSs .................... 8 2.3 DEFINING, ANALYSING AND DESCRIBING SNSs ........................................................... 12 2.4 USES OF SOCIAL NETWORK SITES ................................................................................. 15 2.5 THE FEATURES OF A SPECIFIC SNS: FACEBOOK ........................................................ 18 2.5.1 General features .................................................................................................................. 18 2.5.2 Privacy policy and privacy settings on Facebook ........................................................... 19 2.5.3 Noteworthy features on Facebook ..................................................................................... 21 2.5.3.1 Timeline and News Feed ..................................................................................................... 21 2.5.3.2 ‘Social plugins’ on Facebook ............................................................................................. 22 2.5.3.3 ‘Tagging’ on Facebook ........................................................................................................ 23 2.6 SUMMARY ............................................................................................................................ 24 Chapter 3 Privacy and identity: A South African perspective ........................................................ 25 3.1 INTRODUCTION ................................................................................................................... 25 3.2 THE RIGHT TO PRIVACY .................................................................................................... 27 3.2.1 Development and recognition ............................................................................................ 27 3.2.1.1 Common law ........................................................................................................................ 27 3.2.1.2 Constitutional law ................................................................................................................ 28 3.2.2 Definition and content of the right to privacy ................................................................... 29 3.2.2.1 Common law ........................................................................................................................ 29 3.2.2.2 Constitutional law ................................................................................................................ 30 3.2.3 Infringement of privacy ....................................................................................................... 33 3.2.3.1 Common law ........................................................................................................................ 33 3.2.3.2 Constitutional law ................................................................................................................ 44 3.3 THE RIGHT TO IDENTITY .................................................................................................... 45 3.3.1 Introduction .......................................................................................................................... 45 3.3.2 Infringement of identity: Wrongfulness and fault ............................................................ 47 3.4 JURISTIC PERSONS AND PERSONALITY RIGHTS ......................................................... 50 3.5 GROUNDS OF JUSTIFICATION .......................................................................................... 51 3.5.1 Introduction .......................................................................................................................... 51 3.5.2 Consent or volenti non fit iniuria ....................................................................................... 52 3.5.3 Necessity ............................................................................................................................. 56 3.5.4 Private defence .................................................................................................................... 57 3.5.5 Public interest in information ............................................................................................. 57 3.5.6 Public interest in art ............................................................................................................ 60 3.5.7 Privilege ................................................................................................................................ 61 3.5.8 Media privilege ..................................................................................................................... 61 3.5.9 Fair comment ....................................................................................................................... 62 3.6 CONCLUSION: PRACTICAL APPLICATION TO SNSs ..................................................... 63 3.7 LEGISLATION REGULATING THE RIGHT TO PRIVACY .................................................. 65 3.7.1 Promotion of Access to Information Act (PAIA) .............................................................. 66 3.7.1.1 The scope and objects of the Act ...................................................................................... 66 3.7.1.2 Access to information ......................................................................................................... 66 3.7.2 Regulation of Interception of Communications and Provision of Communication Related Information Act ...................................................................................................... 67 3.7.2.2 Interception of communications ........................................................................................ 68 3.7.3 Protection of Personal Information Act 4 of 2013 (POPI Act) ......................................... 70 3.7.3.1 Objects and scope of the Act ............................................................................................. 70 3.7.3.2 Conditions for processing of personal information ........................................................ 72 3.9 PROCEDURAL CHALLENGES ........................................................................................... 73 3.9.1 Introduction .......................................................................................................................... 73 3.9.2 Identifying the wrongdoer ................................................................................................... 73 3.9.3 Internet Service Provider .................................................................................................... 75 3.10 REMEDIES ............................................................................................................................ 79 3.10.1 Introduction .......................................................................................................................... 79 3.10.2 Take-down
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