Privacy rights on Facebook – SA

Privacy rights in SA – Facebook

 

Please see below for an important case dealing with the question whether an aggrieved party has a right to privacy when evidence about him has been obtained unlawfully obtained from Facebook. Feel free to share it with your colleagues and clients who might find it of interest. You are also welcome to contact me by reply email or phone with any comments or questions.

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In the recent case of Harvey v Niland 2016 (2) SA 436 (ECG), the applicant, Mr Harvey, and the first respondent, Mr Niland, were the only members of a close corporation, Huntershill Safaris CC, which offered professional hunting services to its clients. Niland was employed by Huntershill as a professional hunter and safari guide until mid 2015. Around that time, Harvey and Niland parted ways on bad terms and Niland took up employment with another hunting company, Thaba Thala Safaris.

Harvey suspected Niland of breaching his fiduciary duties to Huntershill by acting in competition with Huntershill, and soliciting and diverting its clientele to Thaba Thala. A colleague provided Harvey with Niland’s Facebook login details. This enabled Harvey to access Niland’s Facebook account without Niland’s permission. Harvey then downloaded Niland’s Facebook communications which showed that Niland had been actively soliciting Huntershill’s clientele and diverting them to Thaba Thala.

Harvey then brought an urgent application to interdict Niland from soliciting Hunterhill’s clientele on the basis that these solicitations were causing financial and reputational damage to Huntershill. Niland argued that the communications had to be struck out because they infringed his right to privacy and were obtained through the commission of an offence under s 86(1) of the Electronic Communications and Transactions Act 25 of 2002. A central issue before the court was whether the Facebook communications unlawfully obtained by Harvey could be admitted.

The court dismissed Niland’s claim to privacy and held that the hacked posts, while revealing duplicitous conduct on Harvey’s part, were essential to Harvey’s case and could not in practice have been procured in another lawful way. In the circumstances Niland’s appeal to privacy rang hollow and would need to be overridden by the public interest that his deceitful conduct be exposed. The meant that the evidence illegally obtained by Harvey was admissible and Niland’s application to strike the evidence out was dismissed.

Of interest to attorneys and their clients is the court’s reasoning in this case. The court explained that:
1. At common law, the rule is that all relevant evidence is admissible unless rendered inadmissible by an exclusionary rule. However, that rule is not absolute: the court has a discretion to exclude unlawfully obtained evidence.

2. In deciding whether to exclude unlawfully obtained evidence or to admit it, the court will have to regard to the following factors:

2.1 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, depending on how far one has strayed from the inner sanctum of the home.

2.2 Is the matter before the court a criminal or a civil matter? In criminal proceedings, an accused has a right against self incrimination and to silence. The accused is therefore not obliged to disclose his defence, or to assist the state to prove its case by providing it with any documents that may strengthen its case. On the other hand, in a civil case, a party 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.

2.3 The upshot of this distinction between civil and criminal cases is that in a civil case, if the evidence involved is the type of evidence which the litigant would or should eventually obtain through lawful means (e.g. discovery) had he known about it, the court will likely admit it, especially in cases (such as this one) where the applicant would not otherwise been able to lay his hands on it.

It would appear from obiter dicta of the court in Harvey v Niland that the right to privacy is more limited when one uses a social media platform such as Facebook to issue certain communications. The person issuing those communications cannot expect to rely on the violation of his/her privacy if those communications are then brought to light, whether the communications were obtained legally or illegally.

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Facing cancer & covid 19

Facing cancer & covid 19

Facing cancer & covid 19


— Read on www.lawjustlaw.com/2020/03/facing-cancer-covid-19/

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076 741 6666

Our mission:

  1. Promote the legal profession
  2. Market and advertise legal firms
  3. Provide insurance for legal costs

Our President Ramaposa inspired by legal protection

George

George Kleynhans

George Kleynhans, founder of SA non-citizen Legal Protector

Soccer WorldCup 2010

Our rolemodel and icon of legal protection:

300px-Nelson_Mandela-2008_(edit)

Email: lawya@me.com

All visitors outside the domain .co.za are advised to visit our site:

Our recommendation to all young prospective lawyers to subscribe and join our discussion of law,  lawyers and lifestyle.

 George Kleynhans

lawya@me.com

 0767416666

Devil’s Bargain — L.M. Sacasas

In his most recent newsletter, sociologist Mark Carrigan mused about the question “What does it mean to take Twitter seriously?”

My initial thought, upon reading the titular question, was that we take Twitter seriously when we reckon with its corrosive effects, both on public discourse and on our psyche (to say nothing of our souls).

That was not quite what Carrigan had in mind: “… what I’m really seeking is to take it seriously,” Carrigan explains, “using it as a form of intellectual production while avoiding the mindless distraction it can so easily give rise to.”

I’m tired and my cynicism is acting up just now, so my response was dismissive: “Good luck.” I grant, though, that the question deserves a bit more in response.

Carrigan uses Twitter’s ephemeral character has his foil and so notes that the fact that “people can use Twitter in ways which are far from ephemeral tells us little about how we can do this,” take it seriously as a site of intellectual production, that is.

He goes on to note that there’s a certain artfulness involved in condensing a serious thought into a brief statement, as in the tradition of the aphorism. And he correctly observes that it is not just a matter of Tweeting slowly, as the Slow Scholarship Manifesto would have it, but rather it is best understood as a matter of care.

Carrigan knows, of course, that there are real challenges involved. He is currently taking a break from Twitter, after a long stint managing the social media feed for an academic publication and scheduling 50+ tweets a day (the mere thought exhausts me). He understands that much of Twitter’s content is less than artful and serious. He understands that it can inculcate unfortunate habits. But on the whole he remains hopeful about the possibility of using Twitter meaningfully.

I don’t know. I just took some time off the platform myself, roughly three months or so. In truth, I continued to check in periodically to see if there were any interesting stories or essays circulating and simply refrained from tweeting anything out except links to a couple of pieces that I wrote during that time.

I’ve come back to the platform, if I am honest about it, mostly for the sake of getting my work a little more attention. I have to confess that Twitter has yielded some good relationships and opportunities over the past few years. And there’s a part of me that wants to keep that portal open. It’s just that on most days, I’m not sure it’s worth it.

With regards to Twitter, I’m a convinced McLuhanite: the medium is the message, which is to say that regardless of the well-intentioned uses to which we put it, the medium will, over time, have its effect on users, and most of those effects are toxic. And, I hasten to add, I think this would be the case even if Jack kicked off the Nazis, etc.

Alan Jacobs, whose work you all know I admire and whose opinion I value, remains resolute in his decision to abandon the platform for good:

But here’s why I keep saying it: The decision to be on Twitter (or Facebook, etc.) is not simply a personal choice. It has run-on effects for you but also for others. When you use the big social media platforms you contribute to their power and influence, and you deplete the energy and value of the open web. You make things worse for everyone. I truly believe that. Which is why I’m so obnoxiously repetitive on this point.

Just give it a try: suspend your Big Social Media accounts and devote some time to the open web, to a blog of your own — maybe to micro.blog as an easy, simple way in. Give it a try and see if you’re not happier. I know I am.

I don’t disagree, except to say that ditching the platform and going indie, as it were, works better (better, I grant, depends on your purposes) when you’ve already got a large audience that is going to follow you where ever you go or an established community (a convivial society, I’d dare say), online and off, with which to sustain your intellectual life. I’m pretty sure I don’t quite have the former, and I’ve struggled to find that latter, making my way as an independent scholar of sorts these last several years.

But again, this is not to say that Alan is wrong, only that my counting the cost is a more conflicted affair.

In any case, I can feel Twitter working on me as I’ve begun to use it more frequently of late and allowed myself to tweet as well as read. I can feel it working on me in much the same way that, in Tolkien’s world, the wearers of the Ring can feel it working on them. It leaves one feeling weary, thin, exposed, morally compromised, divided, etc., while deeply distorting one’s view of reality. And, as far as I’m concerned, there are no Tom Bombadils, immune to the ring’s power, among us in this case.

So, I don’t know, the present foray into Twitterland may be short-lived.

What I do know is that the newsletter is increasingly where I want to write and what I want to keep developing. It may be that even this fair site, which has served me well for nearly a decade, is entering its twilight. So, anyway, sign up, and, as your final act on Twitter, tell others to do so, too.

Blockbuster Review No. 3: Franchise Tax Board of California v. Hyatt — SCOTUS Predictions

There is a principle in the legal field called “stare decisis.” From Latin, it translates literally to “stand by what is decided.” In layman’s terms—and in law—it means that a court ought to apply the same reasoning as it did in a prior case, and ought to rule analogously to its earlier decisions in similar […]

via Blockbuster Review No. 3: Franchise Tax Board of California v. Hyatt — SCOTUS Predictions

Exemption clauses

Much has changed in the legal landscape surrounding exemption clauses from when the landmark case of Durban’s Water Wonderland (Pty) Ltd v Botha 1999 1 SA 982 (SCA) was decided. In that case, the court had to decide on the enforceability of a disclaimer notice when the plaintiff and her daughter were flung from a jet ride in an amusement park. The SCA held that, since the defendant had done whatever was necessary to bring the notice to the attention of the plaintiff, the notice could be incorporated into the contract between the plaintiff and defendant, and the disclaimer notice was upheld.

Over time, the strict interpretation of contract followed by the court in Durban’s Water Wonderland has been tempered by various decisions of our courts. As can be seen from the decisions below, courts have become unwilling slavishly to enforce exemption clauses, preferring instead to examine whether the terms of the contract operate unfairly and unreasonably on the plaintiff.

In the case of Johannesburg Country Club v Stott 2004 (5) SA 511 (SCA), the court stated in an obiter dictum that exclusion of liability for damages for negligently causing the death of another was “radical” and that it was arguable that to permit such exclusion would be against public policy because it runs counter to the high value which previously the common law, and now the Constitution, places on the sanctity of life.

In the case of Barkhuizen v Napier 2007 (5) SA 323 (CC), the Constitutional Court held that, while it was necessary to recognise the doctrine of pacta sunt servanda, courts could decline the enforcement of a contractual clause if implementation would result in (i) unfairness or (ii) would be unreasonable for being contrary to public policy. According to the court, a term in a contract that seeks to deprive a party of judicial redress is prima facie contrary to public policy, and is inimical to the values enshrined in our Constitution, even if freely and voluntarily entered into by consenting parties.

In Naidoo v Birchwood 2012 (6) SA 170 (GSJ), the court held that an exemption clause which enabled a hotel to escape liability for injury to its customers while on hotel premises could not be enforced. The court stated that the question is whether in the circumstances of a particular case (e.g. where the plaintiff is staying at a hotel or visiting a public place), the enforcement of a contractual term would result in an injustice. If the exemption clause prevented the contracting parties from having access to the courts, it would be unfair and unjust.

The most far-reaching incursion into the sanctity of exclusion clauses can be found in the Consumer Protection Act, No 68 of 2009. Regulation 44(3)(a)2 of the Act provides that a term of a consumer agreement is “presumed” to be unfair if it has the purpose or effect of “excluding or limiting the liability of the supplier for death or personal injury caused to the consumer through an act or omission of that supplier…” This regulation creates a presumption that the defendant bears the onus to dislodge, and which the plaintiff may then rebut.

It is submitted that exclusion clauses have gone from being prima facie enforceable to prima facie unenforceable. The reason is that such clauses deny access to the courts, a situation that our courts are no longer prepared to countenance for the reasons stated above. The result is the plaintiff no longer bears the onus to show that the clause limiting liability for injury or death is unfair and unreasonable. The defendant now bears the onus of showing that the clause is fair and reasonable.

Exemption clauses

Much has changed in the legal landscape surrounding exemption clauses from when the landmark case of Durban’s Water Wonderland (Pty) Ltd v Botha 1999 1 SA 982 (SCA) was decided. In that case, the court had to decide on the enforceability of a disclaimer notice when the plaintiff and her daughter were flung from a jet ride in an amusement park. The SCA held that, since the defendant had done whatever was necessary to bring the notice to the attention of the plaintiff, the notice could be incorporated into the contract between the plaintiff and defendant, and the disclaimer notice was upheld.

Over time, the strict interpretation of contract followed by the court in Durban’s Water Wonderland has been tempered by various decisions of our courts. As can be seen from the decisions below, courts have become unwilling slavishly to enforce exemption clauses, preferring instead to examine whether the terms of the contract operate unfairly and unreasonably on the plaintiff.

In the case of Johannesburg Country Club v Stott 2004 (5) SA 511 (SCA), the court stated in an obiter dictum that exclusion of liability for damages for negligently causing the death of another was “radical” and that it was arguable that to permit such exclusion would be against public policy because it runs counter to the high value which previously the common law, and now the Constitution, places on the sanctity of life.

In the case of Barkhuizen v Napier 2007 (5) SA 323 (CC), the Constitutional Court held that, while it was necessary to recognise the doctrine of pacta sunt servanda, courts could decline the enforcement of a contractual clause if implementation would result in (i) unfairness or (ii) would be unreasonable for being contrary to public policy. According to the court, a term in a contract that seeks to deprive a party of judicial redress is prima facie contrary to public policy, and is inimical to the values enshrined in our Constitution, even if freely and voluntarily entered into by consenting parties.

In Naidoo v Birchwood 2012 (6) SA 170 (GSJ), the court held that an exemption clause which enabled a hotel to escape liability for injury to its customers while on hotel premises could not be enforced. The court stated that the question is whether in the circumstances of a particular case (e.g. where the plaintiff is staying at a hotel or visiting a public place), the enforcement of a contractual term would result in an injustice. If the exemption clause prevented the contracting parties from having access to the courts, it would be unfair and unjust.

The most far-reaching incursion into the sanctity of exclusion clauses can be found in the Consumer Protection Act, No 68 of 2009. Regulation 44(3)(a)2 of the Act provides that a term of a consumer agreement is “presumed” to be unfair if it has the purpose or effect of “excluding or limiting the liability of the supplier for death or personal injury caused to the consumer through an act or omission of that supplier…” This regulation creates a presumption that the defendant bears the onus to dislodge, and which the plaintiff may then rebut.

It is submitted that exclusion clauses have gone from being prima facie enforceable to prima facie unenforceable. The reason is that such clauses deny access to the courts, a situation that our courts are no longer prepared to countenance for the reasons stated above. The result is the plaintiff no longer bears the onus to show that the clause limiting liability for injury or death is unfair and unreasonable. The defendant now bears the onus of showing that the clause is fair and reasonable.