10 March 2023: Recent press revelations about Matt Hancock’s Whatsapp communications as Secretary of State for Health during Covid highlight how common Whatsapp is now as a form of business communication.
In legal proceedings, parties have to provide disclosure of documents relevant to the matters to be determined at any full hearing, whether those documents support their case or not. Generally speaking, those documents will include letters, memo’s meeting minutes and emails. However more and more communications take place using Whatsapp and Slack and the distinction between business and personal messaging is becoming less clear.
In FKJ v RVT the Court looked at the use of a Claimant’ personal WhatsApp messages when the employer relied on some 18,000 personal and sensitive Whatsapp messages in a sexual harassment / breach of privacy claim. The employer said some were sent to it anonymously and some were found on the Claimant’s work computer. The Claimant argued that they had been hacked.
In the High Court Master Davidson commented “It is obvious that they were communications in respect of which the claimant would ordinarily have had a reasonable expectation of privacy. They contained several years’ worth of day-to-day information about her professional, social and private life, including about her health and sex life.”
The Master went on “no explanation or authority has been offered for the proposition that private information downloaded to a work laptop (a very common scenario) thereby loses its private character”. The Master rejected the Respondent’s strike out application.
This decision is not binding but demonstrates that employers cannot just assume such messages will lose their private character because there were stored on a business computer. The Master commented that when the employer became aware of such messages on a business computer it should “notify the claimant and deliver up the messages to her” even if they appeared relevant to anticipated litigation.
That does not however necessarily mean that such communications would be inadmissible in legal proceedings. Relevant Whatsapp communications may well be disclosable and relevant to the claim. In that context, the Master commented “English courts tend to admit relevant evidence – even when improperly obtained or procured”.
Master Davidson’s comments, as well as reports of Matt Hancock, simply underline the fact that if you put comments in writing, they may come be relied upon in any subsequent legal proceedings. Privacy is important, but does not necessarily trump relevance.
Reculver Solicitors. 0207 118 0950
(with thanks to Blackstone Chambers for news of this decision)