The high court has ruled that a civil litigant’s private Facebook messages, which were unlawfully obtained by the hacking of his personal account, were nevertheless admissible as evidence against him.

In Harvey v Niland, the litigants were members of the same corporation.  Niland was also an employee of the corporation.  After leaving his employment on bad terms, he remained a member of the corporation.  Harvey sought a court order to prevent Niland from soliciting the corporation’s existing customers for his new employer and damaging the corporation’s reputation, in breach of his fiduciary duties as a member of the corporation.  The employer’s complaint succeeded on the basis of private Facebook communications between Niland and the customers, which Harvey had accessed by obtaining Niland’s username and password from another employee.

The court found that the communications were admissible as evidence, despite the fact that:

  • they had been obtained unlawfully in terms of the Electronic Communications and Transactions Act 2002, which criminalises the act of intentionally accessing or intercepting any data without authority or permission; and
  • Niland’s constitutional right to privacy had been infringed.

South African courts have the discretion in civil matters to admit evidence which is obtained unlawfully, taking all relevant factors into account. Deciding factors in this instance were:

  • Unlike in criminal matters, civil litigants have a duty to disclose all documents which are relevant to either party’s case except those which are legally privileged. No privilege could be claimed over the messages.
  • It was unlikely that Harvey could have obtained the messages through court procedures, because he would have had no other evidence to show they existed.
  • Niland had explicitly denied the conduct proved by the messages and had undertaken not to act in such a manner when threatened with legal action.

The court ultimately held that Niland could not rely on his right to privacy in circumstances where “right thinking members of society would believe … that he ought to be exposed.”

This judgement illustrates that the constitutional right to privacy is not absolute. When South Africa’s new privacy legislation, the Protection of Personal Information Act 2013 is fully in force, however, the issue will have to be considered under this act as well.