Unlawfully obtained Facebook communication admissible in court In the matter between Harvey v Nieland and others

Imagine you are watching the sunset somewhere in a cozy environment, feet up, birds chirping, sounds of flowing waters etc. Imagine the urge to open your Facebook account to let the world know how rosy your life is. While at it and on your “private” account, you make certain allegations to your acquaintances and former clients about business prospects you are venturing into and you get carried away at times. At that moment, you even conspire and tell people to keep things on the hush because you know the subjective impact of the nudging you just did. Your attitude may be “what could possibly go wrong”, besides, this is my private social account, and so, you become nonchalant and do it anyway. Well, that attitude may reflect negatively on you in law. If you continue reading, you will notice how Nieland’s private Facebook messages which were unlawfully obtained were used against him in what seems a bizarre turn of events. I will further discuss how and why that was so, just in case you find yourself typing away on social media platforms.

The facts herein are pretty straightforward, Harvey and Nieland were business partners and had registered and traded in a Close Corporation called Huntershill Safaris CC. Harvey held a 51% members’ interest and Nieland 49%. Their core business it seemed was to sell hunting tours. Nieland was employed as a professional hunter and safari guide. Well, they parted ways with simmering tensions but Nieland remained a member of the Close Corporation nonetheless. Harvey suspected foul play that Nieland was sabotaging Huntershill but could not prove it. He suspected that since he joined another gaming house called Thaba Thala as a farm manager, he was going to or is pouching Huntershill clients and breaching his fiduciary duties towards Huntershill in terms of Section 42 of the Close Corporation Act 69 of 1984.

So, Harvey approached his lawyers who directed a letter to Nieland, safe to mention there was quite a ping pong effect of letters. Eventually, Harvey’s lawyers requested that Nieland desists from disparaging Huntershill business activities, that he is in breach of his fiduciary duties alternatively breach of his restraint of trade. Nieland’s lawyers responded by denying the allegations but recorded that they will instruct Nieland not to engage in such activities. So, back at the ranch, one of Harvey’s employees muffled that they knew Nieland’s Facebook password. Just what Harvey needed, a chance to snoop on Nieland. They accessed quite a large number of incriminating data from Nieland’s Facebook profile (the so-called Annexure “G” in court papers), needless to say, that was unlawful.

Based on this “evidence”, Harvey then instructed his lawyers to file an urgent application to the Eastern Cape Division in which he requested the court to order Nieland to stop his shenanigans. The matter was heard by Plasket J who then had to determine merits regarding three things: 1. Urgency of the application, 2. Whether or not to strike out Annexure “G” to the Founding Affidavit and 3. Decide whether or not the Applicant deserves the relief claimed by Harvey.

So, without delving into the technicalities attached to the application itself, the court agreed with the urgency therein. Secondly, the court turned its focus to the infamous Annexure “G”. The court agreed that accessing Nieland’s Facebook page without authorization was a violation of his privacy (refer to Section 14(d) of the Constitution of 1996). I must say, Nieland’s answering affidavit must have made a meal of this assertion but there was a critical aspect that the court made reference to which tipped the scales in this matter. Section 86(1) of the Electronic Communication and Transaction Act 25 of 2002 (hereafter the Act) states:

(1) Subject to the Interception and Monitoring Prohibition Act, 1992 (Act No. 127 of 1992), a person who intentionally accesses or intercepts any data without authority or permission to do so, is guilty of an offence.

The shortcoming of the Act is that it is silent on the admissibility of such evidence as obtained through unscrupulous means. That said, the discretion then fell squarely on the court to make the decision in terms of common law and particularly, in civil cases irrespective of how the “evidence” was obtained. To add salt to injury, the answering affidavit where Nieland denied his activities together with his letters propelled a particular interest to the court. Consider the following if this picture is still murky, in civil proceedings, both parties are at liberty to choose the material they wish to discover in order to advance their case and in some instances, that material could be detrimental to their case. However, in criminal matters, the defendant does not have to discover anything. So this choice in civil matters further assisted Harvey’s case. Eventually, the court frowned at the attitude of Nieland, who had denied under oath such activity but now “proven” by this Annexure “G” and further hid behind the privacy clause in the Constitution. At the outset, it must be said that privacy is not an absolute right especially where you expose yourself to business and social interactions. As you can imagine, the privacy defense fell hollow and could not hold in light of the data contained in Annexure “G”. The court also considered what other legal options Harvey could have followed and opined they too, could not have assisted him for example, he could have sought Anton Pillar orders or filed the same application without Annexure “G”, sued damages arising from breach of fiduciary duties.

In the end, when confronted with an issue pertaining to allegations of impropriety relating to social media utterances, one ought to be circumspect before denying anything out of hand as there may be incriminating evidence that your opponent may have up their sleeve. There was brilliance in this instance to launch an application instead of action proceedings, possibly to circumvent speaking to the authenticity of the infamous Annexure “G”. So, the court literally looked at what Nieland had done by luring Huntershill clients through his posts in violation of his fiduciary duties, he lied in his answering affidavit contrary to Annexure “G” and ordered the admissibility of Annexure “G” despite the privacy clause defense, ordered costs against him and further interdicted Nieland to continue engaging in activities which amongst others violated his fiduciary duties to Huntershill. So, be careful what you say on Facebook and other similar channels of social media while idling with nothing much to do.

By Phalen Selibi
phalen@dyason.co.za