Harvey v Niland and Others (ECG) (unreported case no 5021/2015, 3-12-2015) (Plasket J)

By Nomfundo Manyathi-Jele

Our right to privacy on social media in the workplace has been put in the spotlight by the recent judgment of Harvey v Niland and Others (ECG) (unreported case no 5021/2015, 3-12-2015) (Plasket J), where the Eastern Cape Division, Grahamstown, ruled that evidence obtained by hacking into Bruce Niland’s Facebook account, was admissible in court.  The Facebook communication was presented to court.

Background

In this case, the applicant, Gregory Harvey, and the first respondent, Mr Niland, were the only members of a close corporation, Huntershill Safaris CC (Huntershill), which offers professional hunting services to its clients. Mr Niland was employed by Huntershill as a professional hunter and safari guide until mid-2015. Around that time, Mr Harvey and Mr Niland parted ways on bad terms and Mr Niland took up employment with Thaba Thala Safaris (Thaba Thala), while remaining a member of Huntershill. Thaba Thala also provides safaris and professional hunting services.

Mr Harvey suspected Mr Niland of breaching his fiduciary duties to Huntershill by attempting to solicit and divert their existing clients to Thaba Thala. Because Mr Niland remained a member of Huntershill, he was still in a fiduciary relationship with the close corporation, meaning that he was in breach of his fiduciary duties through his activities with Thaba Thala. Mr Harvey brought an urgent application to interdict Mr Niland from these activities which allegedly caused financial and reputational damage to Huntershill.

An employee then informed Mr Harvey that she knew the password for Mr Niland’s Facebook profile. He instructed her to use the password and access it, which she did and Mr Niland’s Facebook communications were copied and printed.

In his answering affidavit, Mr Niland stated that he never gave his password to anyone and deduced from this that Mr Harvey hacked his Facebook communications unlawfully and contrary to the provisions of the Electronic Communications and Transactions Act 25 of 2002 (the ECT Act).

Facebook communication

I will now highlight some of the communication that Mr Harvey found on Mr Niland’s Facebook profile, which he used in court.

According to the judgment, on 14 July 2015 Mr Niland placed a message on his Facebook wall to the effect that he had decided to leave Huntershill and was ‘going on to bigger thinking’. On 15 July 2015, he stated that he would be ‘hunting with a company not far from here’. In a communication with Candice Syndercombe, who was not a client but, it would appear, a friend of Niland’s, he told her, with reference to his move to Thaba Thala that he had been asked ‘to make a big hunting place’ and that he was ‘going to try’. It is apparent that she was in the United Kingdom. In one communication, he asked her to sell hunts there for him.

On 15 July 2015 Mr Niland informed one William Nelson, described by Mr Harvey as an important client and hunting agent, that Thaba Thala Safaris ‘is my new home’, that Nelson is ‘welcome to join me, but please keep quiet’, that he will start there in 15 days and that it had not been hunted for three years.

Mr Niland went on to ask Mr Nelson whether he had booked at Huntershill to which Mr Nelson answered in the affirmative – ‘because I cannot change the expectations everyone going with me have’ – and then added: ‘Let me get through this hunt, and we’ll move forward’. Mr Nelson also sent a message to Mr Niland in which he asked him to tell ‘me before I send everyone’s deposits’ whether there was a problem with Huntershill.

According to the judgment, in his exchanges with Wayne Pourciau, a ‘valued existing client of Huntershill who has hunted at Huntershill three times previously, and had already committed to return to hunt at Huntershill’, Mr Niland, with obvious reference to Thaba Thala, stated that it ‘will be huge areas to hunt’ to which Mr Pourciau asked for information as to where Thaba Thala is and ‘what we can shoot’. When Mr Pourciau offered to ‘get the word out around here’, Mr Niland told him that he still needed two more weeks as he was ‘sorting the prices and packages out’.

The admissibility of the Facebook communication as evidence

With regards to the admissibility of the Facebook communication, in his judgment Plasket J said that at common law, ‘“all relevant evidence which was not rendered inadmissible by an exclusionary rule was admissible in a civil court irrespective of how it was obtained”. That rule is not absolute: It is subject to a discretion to exclude unlawfully obtained evidence.’

He further states that s 14(d) of the Constitution provides that everyone enjoys a fundamental right to privacy which includes the right not to have ‘the privacy of their communications infringed’. In order to give this right teeth, s 86(1) of the ECT Act provides that, ‘a person who intentionally accesses or intercepts any data without authority or permission to do so, is guilty of an offence’.

In his judgment, Plasket J states that it has been argued that the evidence should be struck out because the accessing of Mr Niland’s Facebook communications was an infringement of his fundamental right to privacy and constituted a criminal offence as well. In other words, it is evidence that was unlawfully obtained.

Case law

Plasket J then looked at examples of numerous case law. He said that it was argued that the legislation applicable to this case, the ECT Act, is a ‘game-changer’. ‘I am not persuaded that it is. It creates, like the legislation in issue in the cases dealt with above, an offence – of accessing data without authority or permission – and it is silent on whether evidence obtained in contravention of
s 86(1) is inadmissible. I am of the view that, far from being a “game-changer”, the ECT Act, by its silence on the issue, allows for the admission of unlawfully obtained evidence subject to its exclusion in the discretion of the court,’ he said.

‘How then does a court decide whether to exclude unlawfully obtained evidence or to admit it,’ Plasket J questioned.

Plasket J said in Fedics Group (Pty) Ltd & Another v Matus & Others; Fedics Group (Pty) Ltd & Another v Murphy & Others 1998 (2) SA 617 (C), the judge considered whether the same considerations apply to unlawfully obtained evidence in the criminal and civil contexts. ‘He made the point that, while in criminal proceedings, an accused has a right against self-incrimination and to silence, is not obliged to disclose his or her defence or to assist the State to prove its case, and is under no obligation to provide the State with any documents that may strengthen its case, the position is quite different in civil proceedings: a party in civil proceedings “is not only obliged to disclose his case, he is also obliged to discover all documents which may damage his own case or which may directly or indirectly enable his adversary to advance his case”,’ the court stated.

Plasket J goes on to say: ‘He spelt out the implications of this for the way in which the discretion to allow or disallow unlawfully obtained evidence is to be exercised when he stated:

“Without trying to formulate principles of general validity or rules of general application, the implications of these differences between criminal and civil proceedings in the present context are, in my view, twofold. On the one hand, the litigant who seeks to introduce evidence which was obtained through a deliberate violation of constitutional rights will have to explain why he could not achieve justice by following the ordinary procedure, including the Anton Piller procedure, available to him. On the other hand, the Court will, in the exercise of its discretion, have regard to the type of evidence which was in fact obtained. Is it the type of evidence which could never be lawfully obtained and/or introduced without the opponent’s co-operation, such as privileged communications, or the recording of a tapped telephone conversation, or is it the type of evidence involved in this case, namely documents and information which the litigant would or should eventually have obtained through lawful means? In the latter case, the Court should, I think, be more inclined to exercise its discretion in favour of the litigant who seeks to introduce the evidence than it would be in the case of the former. It goes without saying that the Court will, in any event, have regard to all the other circumstances of the particular case”.’

Plasket J stated that in the exercise of the discretion to exclude unlawfully obtained evidence, all relevant factors must be considered. These include the extent to which, and the manner in which, one party’s right to privacy (or other right) has been infringed, the nature and content of the evidence concerned, whether the party seeking to rely on the unlawfully obtained evidence attempted to obtain it by lawful means and the idea that ‘while the pursuit of truth and the exposure of all that tends to veil it is cardinal in working true justice, the courts cannot countenance and the Constitution does not permit unrestrained reliance on the philosophy that the end justifies the means’.

‘I accept for purposes of this matter that, in accessing Niland’s Facebook communications, Harvey acted unlawfully. I accept too that this act, apart from probably constituting criminal conduct also constituted a violation of Niland’s right to privacy. That right must, however, be viewed in its proper context,’ Plasket J states in his judgment.

In Gaertner & Others v Minister of Finance & Others 2014 (1) BCLR 38 (CC) it was held that: ‘Privacy, like other rights, is not absolute. As a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks. This diminished personal space does not mean that once people are involved in social interactions or business, they no longer have a right to privacy. What it means is that the right is attenuated, not obliterated. And the attenuation is more or less, depending on how far and into what one has strayed from the inner sanctum of the home.’

Plasket J goes on to say that: ‘[T]he hacking of Niland’s Facebook communications would have produced both information that was relevant to the business of Huntershill and Niland’s fiduciary duties to it, and information that was irrelevant to those issues and entirely private.  The relevant material that was accessed, however, established that Niland had been conducting himself in a duplicitous manner contrary to the fiduciary duties he owed to Huntershill. That duplicity was compounded by the fact that he had denied that he was acting in this way and had also undertaken not to do so. In these circumstances, his claim to privacy rings rather hollow.’

Plasket J examined whether Mr Harvey had other lawful means of obtaining the evidence available to him. ‘On the face of it, he could have instituted an action against [Mr] Niland for damages arising from the breach of his fiduciary duties. He would have been entitled to discovery of annexure “G” in due course. If he was concerned that the evidence may disappear, he may have been able to launch an application for an Anton Piller order in order to preserve it pending the institution of the action. A third possibility would have been to launch an application such as the present without annexure “G”,’ he said.

Plasket J said that in his view, the other courses of action would not have availed Mr Harvey and are, from a practical perspective, more apparent than real. He continued to say that without the Facebook communication, Mr Harvey had no case and so could neither institute an action or launch an application. ‘An application for an Anton Piller order would have floundered too. It would have been seen as nothing but a fishing expedition and the suspicions that he had would not have constituted the prima facie case he would have had to make out in order to meet the first requirement for this relief,’ he said.

Plasket J said that right-thinking members of the society would believe that Mr Niland’s conduct, particularly in the light of his denials and the undertakings that he gave, should be exposed and that he should not be allowed to hide behind his expectation of privacy: ‘It has only been invoked, it seems to me, because he had something to hide,’ he said adding that in these circumstances, the Facebook evidence is admissible and the application to strike it out must fail.

The order

The court ordered that for as long as Mr Niland remains a member of Huntershill, he is interdicted from –

• breaching his fiduciary duties to the second respondent as contemplated by s 42 of the Close Corporation Act 69 of 1984;
• competing with the business interests of the second respondent, whether directly or indirectly;
• marketing or promoting the professional hunting and safari activities or services of Thaba Thala Safaris or any other rival or competing professional hunting or safari outfitter;
• disparaging the second respondent or any member or employee of the second respondent;
• disparaging the business activities or professional hunting and safari activities or business of the second respondent;
• utilising in any manner whatsoever, and either directly or indirectly, the personal client base data of any clients of the second respondent, or any person who has hunted with or at the second respondent since 2010;
• canvassing, soliciting or diverting, or attempting so to do, any existing client of the second respondent or any person who has hunted at or with the second respondent since 2010;
• any conduct, which will have the effect of damaging the goodwill or client or business relationships of the second respondent;
• copying, transmitting or transcribing, or rendering in usable form, any existing client data relating to existing clients of the second respondent, or any person who has hunted at or with the second respondent since 2010; and
• making available to any other party or entity, whether in digital form or otherwise, any client data or contact information relating to existing clients of the second respondent, or any person who has hunted at or with the second respondent since 2010.

Mr Niland was also directed to pay the costs of the application, including the costs of two counsel.

Nomfundo Manyathi-Jele NDip Journ (DUT) BTech Journ (TUT) is the news editor at De Rebus.

This article was first published in De Rebus in 2016 (April) DR 38.