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March 14, 2018

CCTV cameras at home and the right to privacy

A client asked: What is the law on CCTV installation on a private property in relation to privacy and the law? I have a situation where a camera has been set such that 85% of what is being captured is in my yard.
Privacy issues

You have the right to protect your property and this can be done by using a CCTV system where it is necessary, such as a security measure. However, out of respect for your neighbour, CCTV systems should be used in a responsible way to respect the privacy of others.

The problem arises when you cross the line between monitoring your own property and somebody else’s. If your camera is angled in such a way that it includes coverage of your neighbour’s yard or driveway, then complaints about invasion of privacy will follow.

CCTV monitoring is acceptable and even welcomed in public places, but it is unreasonable to be spied on in your own private property. 

The law

The complaints about invasion of privacy are not specifically protected in law. Our constitution gives a citizen the broad right to privacy. However, there is nothing illegal, per se, about home surveillance in South Africa.
South Africa’s Protection of Personal Information Act which seeks to regulate the Processing of Personal Information, does not apply to purely household or personal activity.
Clearly, the common law would protect you, regarding your neighbour’s CCTV cameras, when:
·         The surveillance is of a criminal or voyeuristic nature;
·         The area being monitored is one where someone would reasonably expect to have privacy, such as a bedroom or bathroom;
·         The surveillance is of such intensity that it is creating a nuisance, preventing someone from the enjoyment of their property;
·         The installation of the cameras is the result of a neighbourhood dispute involving threatening behaviour, in which case an apprehended violence order may call for the cameras to be removed.
The solution
Use some basic common sense to avoid alienating your neighbours and possibly being taken to court.
When you install CCTV cameras, make sure that:
·         You are transparent to those around you when installing your CCTV system, by informing your neighbour(s) about your system;
·         They are only monitoring your property;
·         If your camera is pointing directly at a neighbour’s property, you should take steps to reposition it to avoid complaints or in some cases accusations of violation of privacy or harassment;
·         If they are overlooking the street, there is a sign informing people they are being monitored;
·         They are not monitoring areas where people could reasonably expect privacy;
·         The stored information is not used for any other purpose than protecting your property;
·         If you record images, regularly delete the recordings and do not keep them for longer than is necessary for the protection of your property;
·         If your system captures information of an incident, retain that information as it could be use by the police to aid an investigation.

February 18, 2018

Social Media and the Law

Social media platforms such as Facebook, Twitter and YouTube have become an integral part of our everyday lives and have an important role to play in our social environment and help us keep in touch with others and stay informed of events around the world. Yet despite many of the benefits of social media platforms, these platforms also create opportunity for abuse and often bring out the worst in people, often without thought as to the consequences of their action.

Many people lose sight of the fact that the moment something is posted on social media sites, it is considered “published” and is therefore subject to the laws applicable to traditional media, such as newspapers. Accordingly, claims for defamation and hate speech as well as dismissal or disciplinary action for social media misconduct become very real possibilities.

Defamation can be defined as the wrongful, intentional publication of words or behaviour in relation to another person which has the effect of injuring his status, good name or reputation.
Our courts have recently set a new legal precedent after it granted a Facebook user an interdict preventing a friend from posting about his personal life on the platform after she defamed him in a Facebook post.

In another case a woman was awarded R 40,000 in damages after claiming that her former husband and his new wife were bad-mouthing her on Facebook. The judge found that although the former husband was not the author of the postings, he was tagged in and knew about them and allowed his name to be coupled with that of his new wife thus creating liability jointly with the author of the postings.

Hate Speech
Hate speech is any speech, gesture or conduct, writing, or display which is prohibited because it may incite violence or prejudicial action against a protected individual or group, or because it disparages or intimidates a protected individual or group. The law may identify a protected individual or a protected group by disability, ethnicity, gender, nationality, religion, race, sexual orientation, or other characteristic.

Although freedom of expression is a constitutional right, it is not an absolute right. If what you say, or publish via social media platforms, has a negative impact on the rights of another, then your right to freedom of expression may be limited.

Disciplinary action, including dismissal for social media conduct have increased drastically over the past few years often following on the heels of comments made or posted on social media sites by employees. The Commission for Conciliation, Mediation and Arbitration (CCMA) has dealt with several of these cases where the dismissal was found to be fair based on the evidence garnered from the social media sites.

Some of the grounds for dismissals have included derogatory Facebook status updates, an employee criticising management, criticising the employer, employees using social media to convey internal matters of the business to former employees, etc.

Take note
What should you take note of when using social media to avoid legal or disciplinary action arising from your conduct on these social platforms?
  • The most common defence against defamation is that the publication was true and in the public interest. Make sure about your facts before posting anything and ensure that you can back your comments with substantiating evidence and factual information. Accordingly, making a comment about a friend on a matter that is not in public interest could be defamatory even if it is true.
  • Regularly check your social media profiles to ensure that your name is not being linked to defamatory statements of others.
  • Do not post anything which could be regarded as incitement to cause harm based on race, religion, ethnic background, gender, sexual preference etc.
  • Adhere to the social media strategy and policies of your workplace. Find out what these are, and if these are not in place, keep the following guidelines in mind:
    • Keep posts legal, ethical and respectful.
    • Do not engage in online activities which could harm the reputation of the company.
    • Do not disclose any confidential or business information of the company.
    • Do not discuss colleagues, managers or information pertaining to the company.
A good rule of thumb is to ask yourself whether you would be willing to say something out loud in a room full of people or colleagues. If the answer is no, then you shouldn’t consider posting it on social media.

February 10, 2018

Is the disclaimer at the foot of your email enforceable?

As far as I have been able to establish, no court has pronounced on the enforceability of email disclaimers.

Generally, they seek to impose a contractual obligation between the sender and recipient. In terms of the law of contract, unilateral contracts are generally unenforceable, even in the form of email disclaimers.

However, the doctrine of vicarious liability applies equally to emails as it does to other forms of correspondence. If the recipient reasonably believes the email was sent by someone representing the company, he or she can conclude that the content of that email represented the views of the company. If the email was defamatory of the recipient, he or she could sue the company. The exception to this is where the recipient has good reason to believe that the sender was not acting on behalf of the company, but was in fact acting on ‘a frolic of his own’.

The types of legal problems that can be caused by an email are numerous and could include claims for Defamation, Misrepresentation, Breach of Confidentiality, Sexual Harassment and Virus contamination of a recipient’s network.

Even if the recipient of your email does nothing to signify acceptance of the disclaimer, the chances of the disclaimer being effective are improved if:

·         the disclaimer appears at the top rather than the bottom of the email. In this way, the email comes to the attention of the recipient before he or she has read the contents of the email so that in the same way as a fax cover sheet disclaimer, the recipient can make an informed decision whether to continue reading the contents.

·         if the recipient has received emails from the sender before, it could be argued that s/he knew and accepted the contents of previous email disclaimers and should exercise care in continuing the exchange of emails if s/he is unwilling to accept the terms of such disclaimer.

The actual content of the disclaimer is important. It should anticipate areas of potential liability as contemplated by the common law and statute, such as the Consumer Protection Act and the soon-to-be enacted Protection of Private Information Act.

A company can and should minimise the damage that it could suffer at the hands of its employees who may send embarrassing or offensive emails. What procedure should it follow?

Every company should have a detailed Email and Internet Use Policy in place, that must be signed for in writing by every staff member. The policy should set out the sanctions for various types of breach of the policy. Let Bregmans help you design this policy.

I recommend that your emails begin with this disclaimer:

The contents of this e-mail and any attachments are confidential, may be privileged and are intended solely for the use of the named recipient(s). If you have received it in error, do not disclose, distribute, or retain it or any part of it, and please notify the sender immediately and delete the e-mail.

And end, below your signature, with:

E-mail is not necessarily secure or error free as information could be intercepted, corrupted, lost, destroyed, arrive late or incomplete or contain viruses. We endeavour to exclude viruses from our e-mails. However, it is the responsibility of the named recipient(s) to ensure that e-mails and all attachments are virus free. Name of your company accepts no liability or responsibility of whatsoever nature should information or data be corrupted, or fail to reach its intended destination or be accessed by anyone other than the addressee, for whatever reason or cause.

February 02, 2018

Are your sectional title affairs in a mess (your body corporate owes a fortune in arrear municipal charges)?

You may consider appointing an administrator to halt legal proceedings and negotiate a way out.

The Application to appoint an Administrator for a fixed period with the purpose of rehabilitating the scheme, is brought in terms of section 16 of the Sectional Titles Schemes Management Act.

It is our experience, particularly where there is a large amount outstanding in municipal debt, the Council is more at ease negotiating a settlement with a court appointed Administrator than with Trustees. An Administrator ‘takes the place of the Trustees’ for a period, and as a completely independent third party making all the decisions affecting the scheme (including harsh steps relating to debt collection), removes the stress and pressure that you may currently be experiencing.

An attorney (we can help) would bring an application to the High Court for the appointment of the administrator.

We would require a copy of a current levy roll, bank account balance, latest audited financial statements and a summary from the Trustees of the state of the building in respect of maintenance and repair requirements. We also need to know the approximate amounts currently outstanding to creditors and a copy of the most recent municipal accounts.

Once we have assessed the situation, we will advise you of the legal costs of bringing the Application, as well as an indication of the time it will take before the Administrator is appointed and can begin the rehabilitation process.

January 27, 2018

Contracting with a trust

If you buy a property in the name of a company, the offer to purchase can state that Joe Bloggs acts in his capacity as an agent of a company to be formed. This is perfectly valid in that the company can subsequently ratify the offer.

This is not the case with trusts. The following principals apply:

·         All contracts must be concluded with an already-established trust;

·         All (or in the case of some trusts, a majority of) trustees must consent in writing to the contract before entering into contracts on behalf of a trust. If there is no prior written authority (usually in the form of a resolution), the contract will be void;

·         A void contract cannot be rectified by ratification (i.e. the remaining trustees can’t approve – and thereby resurrect – a void contract after it has been signed).

This was confirmed by our Supreme Court of Appeal in the case of Thorpe and Others v Trittenwein and Another 2007 (2) SA 172 (SCA). In this case one trustee (who was also the founder and a beneficiary of a trust) signed a sale agreement for the purchase of land without the prior written authority of the other trustees. The other trustees subsequently ratified the first trustee’s act but the Court held that this was not possible and the seller was free to sell to someone else.

·         Trustees can only exercise a power if that power is given to them in the trust deed. If, for example, the trust deed doesn’t give the trustees the power to buy and sell property, a unanimous resolution of trustees to do so doesn’t cure this defect – the agreement will still be void.

So if you are about to enter into a contract with a trust, make sure that the trust deed gives the trustees the authority to contract with you, satisfy yourself that the trustees are who they claim to be (see latest Letters of Authority for the trust) and ensure that an appropriate resolution is in place, signed by all the trustees.