All of us post messages on Facebook and the internet from time to time, and many of us are ardent Twitter users. Like everything in life, the publication of those messages, extracts or excerpts, though seemingly private in nature, is governed by legal principles which come with a set of do’s and don’ts. Who would have thought that something as simple as tweeting a seemingly innocuous comment would give rise to a legal debate as to whether the content of the tweet could be admissible as evidence in a court of law?

The Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“RICA”) regulates the interception of private communication between individuals. Notwithstanding the fact that the Constitution protects our right to privacy and there is an outright prohibition on the interception of communications (section 2 of RICA), the interception of communication is permitted where:

  • the communication is intercepted by a party to the communication (section 4 of RICA);
  • the communication is intercepted with the consent of a party to the communication (section 5 of RICA); or
  • the interception of an indirect communication is in connection with carrying on a business (section 6 of RICA).

The issue of privacy in the context of social media still remains to be determined (currently case law only deals with open profiles on social media platforms) and how our courts will deal with issues arising out of social media is still, to a large extent, uncertain.

In determining the admissibility of evidence obtained from social media, the court must consider:

  1. whether the person’s possession of the evidence constituted a violation of the other person’s privacy (for example ‘hacking’); and if so
  2. whether such violation of privacy is reasonable and justifiable in an open and democratic society.

In this regard, a distinction must be made between:

  • Evidence in the public domain:

Where information has been posted onto the internet, Facebook (and the user does not have any privacy settings), Twitter or a blog, it is easily accessible and can be exploited by any internet user without authorisation. Accordingly, such information will be in the public domain and the use thereof will not infringe another’s legal rights, such as the right to privacy, copyright or an obligation of confidentiality.

In such circumstances where the use of the information obtained from the public domain does not infringe another person’s right, and does not contravene any other law, such information should be admitted as evidence.

  • Improperly obtained evidence:

By contrast, the use of evidence that is not in the public domain and that has been obtained in an improper manner (i.e. in contravention of RICA) would result in the infringement of a legal right or the contravention of a law.

In general, the use of evidence which has been obtained contrary to a constitutional principle (such as the right to privacy) should be excluded from evidence due to the fact that its admission would be against the good morals of society.

Nevertheless, in terms of our common law, the court has an overriding discretion to allow relevant evidence to be admitted despite the fact that it has been improperly obtained. In such an instance the court would need to have due regard to the facts and circumstances surrounding the way in which the evidence was obtained and whether the admission of such evidence would be reasonable and justifiable in an open and democratic society.

Thus, a party to a dispute may use information downloaded from social media that is in the public domain as evidence, provided, however, that it meets the requirements for admissibility, i.e. that the evidence is relevant, authentic and the best evidence available.

In contrast, the question as to whether a party may use evidence obtained from social media that has been improperly obtained will depend on the specific facts of the case and the court will have discretion to exclude evidence which is otherwise admissible due to the fact that it has been improperly obtained.