Using social media for legal purposes

We have become addicted to social media. We would be lost without it. It is where we share jokes, pictures and personal information, explode in disagreement, offend and insult others to the extent that a number of these posts have cost some of us our jobs or landed us in court.

It is interesting to note that a landmark judgment issued by the KwaZulu-Natal High Court in Durban in 2012 found that social media, and more particularly Facebook at that time, was not only a tool that served social networks, but was also a functional tool which could be utilised in legal processes. The court concluded that “even courts need to take cognisance of social media platforms”.

The court set the tone in paragraph [2] of the judgment in the matter of CMC Woodworking Machinery and Pieter Odendaal Kitchens :

[2] Changes in the technology of communication have increased exponentially and it is therefore not unreasonable to expect the law to recognise such changes and accommodate it.

The court per Steyn J not only referred to the impact the Electronic Communications and Transactions Act 25 of 2002 (“ECTA”) has had, but also to section 6 (10) of the new Companies Act which came into operation on 1 May 2011:

“(10) If, in terms of this Act, a notice is required or permitted to be given or published to any person, it is sufficient if the notice is transmitted electronically directly to that person in a manner and form such that the notice can conveniently be printed by the recipient within a reasonable time and at a reasonable cost.”

The matter before the court was referred only four days after the Uniform Rules of Court providing for service by way of electronic mail, registered post and facsimiles, was amended on 27 July 2012. Rule 4A incorporated some of the provisions of the ECTA, and provided at s 4A(1)(c) that service of “subsequent documents and notices” could be effected by “facsimile or electronic mail to the respective addresses provided”.

This amendment enabled the Applicant in the Notice of Motion to send the Notice via a Facebook message because, it was submitted, the defendant’s attorneys had withdrawn and the defendant had consistently tried to evade service.

In determining how Facebook related “to other publication forms generally used in effecting substituted service and whether it is accessible” (paragraph [9]) the court accepted that while Facebook was “initially intended to be a social network service”, it had since “developed to serve more than one purpose”:

“[9] …  For example, it is being used as a tool for tracing individuals and in some instances to bring information to the knowledge of those individuals concerned. In this modern era various connection devices are used to access the website, which renders the site easily accessible to most persons.”

Once the court established that the Facebook page to which the said Notice was sent was indeed the defendant’s Facebook page and that such service “would not impact on the defendant’s right to privacy,” the court granted the application to effect service via Facebook.

Given the direction in which the courts have been moving, it didn’t come as a surprise In January 2016 when the North Gauteng High Court in Pretoria granted an order, interdicting Mr Zola Tanga (“Tanga”) from threatening Kitam Foods. The court granted Kitam Foods permission to serve the interdict on Tanga by SMS, WhatsApp, e-mail, and by the Sheriff.

While CMC Woodworking Machinery v Pieter Odendaal Kitchens was an important decision in 2012, it is even more so in a time when we increasingly rely on electronic forms of communication such as, for example, Facebook and WhatsApp messages.