“Privacy, like other rights, is not absolute” (extract from judgment below)
Our courts have made it clear that posting derogatory or damaging comments about your employer or colleagues on social media can amount to misconduct and result in disciplinary action, perhaps even dismissal.
A recent High Court decision of Harvey v Niland and Others (5021/2015)  ZAECGHC 149, although it concerned a members’ dispute rather than a disciplinary action, highlights a particular danger in this regard: Your Social Media posts aren’t necessarily as private and hidden from your employer’s prying eyes as you think they are.
A hunter hunted – illegally
- A fall out between the two members of a close corporation (the CC) resulted in the minority member, who was employed by the CC as a professional hunter and safari guide (let’s call him “the employee”), leaving the business for a rival venture.
- The employee however remained a member of the CC, presumably to avoid breaching a restraint of trade clause in his employment contract. This turned out to be a crucial factor in his downfall, because as a member he still had a fiduciary duty to act honestly and in good faith in relation to the CC and to avoid conflicts of interest with it.
- The other member, in hunting (online in this instance) for confirmation of his suspicions that the employee was trying to steal business from the CC, unlawfully accessed his private Facebook page. Posts on the page indeed proved that he had set up a hunting business in opposition with the CC, had actively sought to entice the CC’s clients to hunt with him, and had been disparaging of the CC and the other member.
- The employer applied to court to interdict the employee/member from continuing with this clear breach of his fiduciary duties, and the Court had to decide whether or not to allow into evidence printouts of the illegally-obtained Facebook posts. Without them, it seems, the employer would have had no case, so unsurprisingly the employee’s legal team fought long and hard to have them struck out.
No place to hide – be careful what you post!
The Court however allowed the Facebook printouts into evidence and granted the interdict against the employee, holding that –
- Accessing the employee’s Facebook account without his permission was indeed both –
- Unlawful, to the extent even of being a criminal offence in terms of the Electronic Communications and Transactions Act (which prohibits any unauthorised access to or interception of “any data” – in this case the CC had illegally accessed the Facebook page via another employee’s knowledge of the password); and
- A breach of the employee’s fundamental constitutional right not to have his right to privacy, including the privacy of his communications, infringed.
- Critically however, unlawfully obtained evidence will not necessarily be excluded by a court. Instead, the court has a discretion whether or not to allow it after considering “all relevant factors” such as –
- The extent of the infringement of the other party’s rights,
- The nature and content of the evidence concerned,
- Whether any attempt was made to obtain the information lawfully,
- “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”.
- In this case the employee’s 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”. His conduct, said the Court, “ought to be exposed and ….. he ought not to be allowed to hide behind his expectation of privacy: it has only been invoked, it seems to me, because he had something to hide”.
The bottom line – our fundamental rights to privacy, as much in cyberspace as in the real world, are by no means absolute. Be careful what you post!
Employers: What about you?
This case is by no means carte blanche for hacking into your partners’ or employees’ Social Media pages. Quite the contrary; online hacking is unlawful with potentially serious consequences in the criminal, civil and labour courts. All it illustrates is that in certain specific circumstances, workplace wrongdoers will find nowhere to hide in our privacy laws. Have in place an employee Social Media policy and take full advice on your specific circumstances.