In Harvey v Niland and Others (5021/2015)  ZAECGHC 149 (3 December 2015), the court had to consider these facts: Niland, a member of a CC, Huntershill, took up employment with a competitor, but stayed on as a member. His co-member, Harvey, suspected that Niland was acting behind the back of the CC, in breach of his fiduciary duties, by directly competing against it.
Through a friend, Harvey got hold of Niland’s Facebook login details, accessed his Facebook page and received the necessary proof that Niland had been actively soliciting the CC’s clientele and diverting them to his new employer.
Harvey brought an urgent application to interdict Niland from these activities which allegedly caused financial and reputational damage to the CC.
After considering the evidence, the judge, Plasket J, ruled that Harvey had indeed acted unlawfully in violation of Niland’s right to privacy. However, he found that Niland ought not to be allowed to hide behind his expectation of privacy, which had only been raised to conceal his own conduct. He granted the interdict.
Could the unlawfully obtained Facebook communications be admitted as evidence of Niland’s breach of fiduciary duties as, without them, Harvey had no real evidence to corroborate his suspicions? According to Plasket J, the common law rule preventing admission of unlawfully obtained evidence is not absolute, but subject to a judge’s discretion.
Plasket J examined Niland’s constitutional right to privacy which includes the right not to have “the privacy of their communications infringed”. In addition, s86(1) of the Electronic and Communication Transactions Act, No 25 of 2002 provides that “a person who intentionally accesses or intercepts any data without authority or permission to do so, is guilty of an offence”. That being said, however, Plasket J stated that all factors relevant to the context must nevertheless be considered. Such factors include: the extent to which, and the manner in which, the party’s right to privacy was infringed; the nature and content of the evidence obtained; whether the party seeking to rely on the unlawfully obtained evidence attempted to obtain it by lawful means; and that the end does not necessarily justify the means.
Plasket J referred to Gaertner & others v Minister of Finance & others 2014 (1) BCLR 38 (CC) where 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… 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”.
In this case, Niland’s behaviour played a decisive role in attenuating his own right to privacy. Plasket J stated 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”. In light of Niland’s actions, members of society would expect that he “ought not to be allowed to hide behind his expectation of privacy,” which had only been raised to conceal his own conduct.