“My business partner managed to get hold of my Facebook password without my knowledge. I’m unhappy with the running of the business and have been talking to clients on Facebook about moving to a new business which I want to start. I never gave him my password and said the things on Facebook in private. Surely he can’t use this information?”
A person’s right to privacy is one of our most important human rights and is protected by our Constitution. But, our right to privacy is not unlimited and can be limited where this is fair and justifiable in an open and democratic society. To illustrate such limitations, one can take note of a recent court case where information that was posted or shared on social media platforms were used as evidence against a person.
In Harvey v Niland, Niland, a professional hunter by trade, was a member of Huntershill Safaris CC with Harvey. Harvey obtained knowledge that Niland was soliciting clients from Huntershill for the purpose of opening up a business in direct competition with Huntershill and in breach of a restraint of trade in place which required a fiduciary duty to Huntershill. Harvey obtained Niland’s Facebook password and accessed his account where he found various exchanges with Huntershill clients, advising them of his move and asking that they join his new business. These communications were introduced as evidence, and notwithstanding Niland’s objections thereto based primarily on the violation of his right to privacy and the fact that the information was obtained contrary to the provisions of the Electronic Communications and Transactions Act (“ECTA”), the Court allowed the evidence, in all respects illegally obtained, to be used against Niland.
The Court’s reasoning was based on the premise that the communications, although illegally obtained by Harvey, and even though such actions could even constitute a criminal offence, were relevant to the business and was the foundation of Harvey’s case in that it proved that Niland had acted contrary to the fiduciary duties he owed as a member of Huntershill and therefore justified the limitation of Niland’s right to privacy, particularly as that evidence could have been obtained by the following of a lawful process by Harvey. The Court thus exercised its discretion to allow the Facebook communications in evidence.
Importantly, the Court did not condone the illegal obtaining of the evidence, but found that despite its illegal obtainment it could be used in the proceedings. In general when it comes to obtaining or intercepting data, it should be noted that Section 86 of the ECTA stipulates that a person who accesses or intercepts any data without authority or permission, may be guilty of a criminal offence and liable to a fine or imprisonment for a period not exceeding 12 months..The ECTA is however, silent on whether such data which is intercepted may be used in criminal and or civil proceedings as evidence. Accordingly, the use of such illegally obtained evidence will be dependent on the circumstances of each and every matter, with the Court being required to decide whether the evidence will admissible or not.
What the above decision clearly illustrates is that one should tread carefully when entering the social media environment and not assume your actions will be private or cannot be used against you. Our Constitutional Court has stated that privacy, like other rights, is not absolute. As a person moves into communal relations and activities such as business and social media interaction, the scope of personal space shrinks.” Where one enters the social media domain you therefore cannot expect the same level of privacy and confidentiality as you would expect for example when you share information with someone during a personal conversation. So tread carefully and assume as a rule of thumb that everything you say on social media could potentially become public and can be used against you.