Angry telephone subscribers whose unlisted phone numbers were published on EasyInfo`s new online directory won`t stand much of a chance of winning if they are hoping to take legal action against the site.
Many telephone subscribers have said they are considering taking legal action against EasyInfo, because its new EasyPeople directory includes the names, numbers and addresses of people with unlisted numbers.
However, Ryk Meiring, Internet law attorney at Spoor & Fisher in Pretoria, points out that an unlisted phone number entails an agreement only between the telecoms provider (such as Telkom) and the subscriber. No other company is bound by this agreement.
In addition, says Meiring, many people happily complete competition entry forms and race entry forms, giving detailed personal information without checking that the forms bear warranties protecting the information. The company collecting these forms is therefore entitled to use this information any way it wants to, including publishing it on the Internet.
"Privacy is in general protected in terms of our Constitution, though," says Meiring. "Anyone wanting to take legal action would probably have to take action in terms of common law, perhaps as a class action suit, and would also have to prove that damages occurred as a direct result of their personal details being published online."
Another complicating issue is that of who to sue. Says Meiring: "If EasyInfo believed they acquired the data legitimately, they could not really be held liable." People would therefore have to find the originators of the database and prove wrongdoing on their part.
"There are two forms of infringement of our common law rights to privacy in SA law, that of unauthorised invasion of privacy by intrusion, and the other the violation of the right to privacy by wrongful disclosure. In pursuing legal action, the person alleging the infringement must first prove that a legally recognised interest has been infringed. The wrongfulness test for an actual event of infringement of privacy in our law is the boni-mores (good morals or legal convictions of the community) general test, which requires the element of intent to establish wrongfulness," says Meiring.
"Assuming that, a presumption of delictual liability is inferred, which if not rebutted by the defendant in an infringement action, opens for the plaintiff an option to sue the defendant for wrongful and intentional injury to personality," he says.
EasyInfo, which operates under the proprietorship of Interface <it. media>, is still removing hundreds of unlisted numbers from its new directory. The new residential telephone and address directory is a joint project by EasyInfo and Umfowize Publishers, owners of the Personal Pages.
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