By Olumide Babalola
As technology continues to emerge, so also will privacy and data protection jurisprudence! This article only seeks to provoke discussions on the subject, it neither represents a cast-in-stone position on the posers nor apt answers to the analysis. Since COVID-19, the average Nigerian lawyer has never embraced (information) technology. He/she now reads and responds to emails more often, the WhatsApp messaging app has now been recognised and accepted as a veritable means of (un)official information communication, the microblogging sites are now used for self-marketing and visibility etc.
However, in spite of the increased utility of technology by the Nigerian lawyer, from my regular engagements with seniors and junior colleagues, it is clear that the average Nigerian lawyer still requires continuing education on the nuances of the tools with respect to privacy and data protection and sundry matters. As much as Nigerians frantically argue that we value the right to privacy, our attitude towards the concept is often paradoxical – we carelessly expose privacy yet we want the same protection. Nigerian Lawyers are inclusive!
Use of Emails
Service by email
It is impressive that our courts are fast accommodating service by email in their respective rules but the bar does not appear to be sold out on this service mechanism as many lawyers still insist on the service of paper copies of court processes. I experienced this recently, when we served a court process on a colleague via email, after acknowledging service, he did not only insist on a hard copy, but he also refused to take any steps until we served the paper copies. Perhaps, the Nigerian Bar Association (NBA) needs to make a policy statement on this as the Nigerian lawyer cannot afford to be stuck in the sixties with respect to our practice and procedure.
Bulk emails
With the use of emails, many Nigerian lawyers cause/perpetrate personal data breaches as a matter of course and practice. The most relatable instance of data breach occurs during bulk emails where a sender copies numerous email addresses as co-recipients without using the blind copy (BCC) option. Sadly, the NBA and its officials are frequent offenders of this privacy violation during electioneering campaigns and while in office. It gets worse when a recipient replies to the bulk message and copies every recipient in the thread. We sure need to learn when to use the ‘reply’ and ‘reply all’ functionalities in our emails.
WhatsApp groups
At the expense of telegram (considered not-user-friendly), WhatsApp messaging app has become one of the most veritable tools of communication in the Nigerian legal community. Hence, technology has enabled the daily communion of legal and political ideas between senior and junior lawyers on various WhatsApp groups created for sundry purposes. The use of such groups for the dissemination and receipt of information will continue to engender many unprecedented legal issues. Here, I will attempt some privacy-related questions which I have observed in some lawyers’ chat rooms.
Are group WhatsApp chatrooms public or private places?
While instant messaging between individuals on WhatsApp constitutes private messages, different considerations apply to group chats since messages are immediately available to a wide array of members. The fact that WhatsApp chatrooms are closed groups, controlled by administrators and often accessible only through invitation do not necessarily make them private meetings even though members may have a reasonable expectation of privacy applicable to other social media platforms.
Social media (WhatsApp groups) presents another striking example of a privacy paradox: participants expose their personal information publicly yet they want control over the same – this is not entirely impossible, especially with highly regulated and specialised groups. In answering whether social media is a private or public place, Trepte notes in her doctoral thesis that:
“In struggling to develop a definition of social media, scholars have pointed to the fact that social media channels are formally understood as methods of mass communication but that they primarily contain and perpetuate personal user interactions. In this sense, social media can be referred to as personal public. As a consequence, users cannot always clearly define the somewhat blurred lines between personal and public or between private and professional communication.” (See Sabine Trepte, ‘The Social Media Privacy Model: Privacy and Communication in the Light of Social Media Affordances’ Communication Theory, Volume 31, Issue 4, November 2021, Pages 549–570)
From Trepte’s theory which is supported by some other academics, social media (WhatsApp groups inclusive) interactions continue to reside on the borderline between public and private spaces. Nigeria has no decision on this but a Scottish decision on the subject gives an insight into the ramifications such claims could take. In BC and others v Chief Constable Police Service of Scotland [2018] CSOH 104, the police sought to rely on some information in a WhatsApp group chatroom to bring disciplinary proceedings against a constable. When the latter challenged the admissibility of such information obtained from the group chat, the Scottish Court of Session agreed that WhatsApp group chats are private when it held that:
“The messaging service used was private and the petitioners had no intention of publishing the contents of their messages to the public at large”
Conversely, however in another development in India, when a man who sent abusive and obscene words on WhatsApp to his estranged wife was charged with making obscene statements in public. The man argued that he sent the messages to his estranged wife in a private WhatsApp chat and the Bombay High Court held that:
“Thus, when these messages cannot be read by others, it ipso-facto goes to show that no third person nor even WhatsApp can have access to those messages. Therefore, WhatsApp cannot be a public place if messages are exchanged on the personal accounts of two persons. If these messages had been posted on WhatsApp Group, in that case, the same could have been called a public place because all the members of the group, will have access to those messages. It is not the prosecution’s case that the alleged obscene messages were posted on the WhatsApp Group of which the petitioner and respondent No. 2 and others are the members. Therefore, sending personal messages on WhatsApp will not amount to the utterance of obscene words in a public place.” See Nivrutti v. the State of Maharashtra and Pooja Nivrutti Criminal Writ Petition No. 557 of 2018
I am more fascinated by the Indian court decision. It aligns with the logic that when three or more persons are on a group chat, it then becomes a public space and it, in most cases, negates the definition of private.
Conclusion
The use of emails has come to stay in our legal practice, however, lawyers need to understand the privacy implications of their use for dissemination and receipt of information. With the proliferation of WhatsApp groups, lawyers need to post information in such groups with a measure of circumspection knowing fully well that they don’t have a personal relationship with everyone on such groups. A lawyers’ chatroom is not Las Vegas! Whatever happens there may not necessarily stay there – it may interest the outside world!
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