0

By Olumide Babalola

In the course of data collation for my recent article titled ‘The Nigerian lawyer, his/her emails, WhatsApp groups and unresolved privacy questions’ I found a thought-provoking article written by Mr. Sylvester Udemezue (Udems – as fondly called) since 2019 on the nature of WhatsApp – a cross platform, instant messaging app – as a private space. I found his perspective rather interesting and understandable given he was one of my lecturers at the Nigerian law school. He is a law teacher of note who has commendably written many articles on various areas of the Nigerian law.

“Since the world’s jurisprudence is unclear on the nature of Whatsapp groups especially, it is advisable for administrators and participants to set the tone on the privacy expectations of their respectful WhatsApp groups.”

I initially wanted to look away from the rather ‘old’ article because I thought Udems’ position might have changed in the light of technological disruptions and improvements that have occurred since 2019, but I gave it a second thought. For whatever this is worth, a rejoinder on the issue will contribute to the growing body of knowledge in the field and bring further perspectives to the emerging area of our law. In the preface to my book titled ‘Privacy and data protection law in Nigeria (Noetico Repertum, Lagos, 2021), I expressed my hope that more Nigerian researchers and academics will write on privacy and grow the field, little did I know that Udems had written such an interesting article since 2019.

RELATED: Virtual Private Network (VPN): Privacy and information security concerns

Having read the article titled ‘Determining Whether WhatsApp is a Public Place: The Legal Perspective’ the following are my respectful observations and comments:

Surprisingly, unlike the vintage Udems who writes with forceful and sometimes highly persuasive conviction, the prolific writer starts this article with “I THINK it is a private place”. That didn’t read like Udems, rather it gave an initial idea of a writer who is also not sure of his position. However, lest this overshadows my intervention, it is inconsequential in the scheme of things. Now to the more serious issues.

Learned Udems relies on “Black’s Law Dictionary” for the definition of the word ‘public’ but my learned teacher does not reference the edition. The first edition of that dictionary was published in 1891 way before the invention of the Internet in 1983 or Whatsapp which was founded in 2009. For the sake of argument, let us assume Udems referenced the 11th edition published in 2019 by Bryan A. Garner, the word ‘public’ is defined as: “Of or relating to or relating to or involving an entire community, state or country.”

A public place relates to “an entire community” but the learned teacher omits to analyse the import of a community in the definition. For the avoidance of doubt, Black’s Law Dictionary, 11th edition defines community as: ‘a society or group of people with similar rights or interests.’ From that definition, any group of people with a common purpose constitutes a community. So, any WhatsApp group set up for a particular objective (rules) unifying the members constitutes a community, hence covered by the definition of public.

Udems surprisingly references ‘the dictionary’ for the definition of public. As of today, there are well over twenty reputable English dictionaries, hence, the readers of his article are at a loss on the particular one referenced therein.

Further in defining ‘public place’ Udems relies on the Criminal Code of 1958, a 2007 decision of the Supreme Court and Public Order Act of 1979!!!! This is just like defining email through the lenses of Wireless Telegraphy Act – the World has metamorphosed into a global village and words now have new meanings as contemplated and enabled by technological advancement.

With the advent of social media, the meaning of ‘public’ changed. A virtual room with the telephone numbers of over 250 participants scattered all over the globe with or without personal relationships should not by any stretch of imagination be tagged as a private place. The nature of WhatsApp groups should not be analysed in isolation of practical functionality and the objectives of the administrators of each group. Hence, generalisation of Whatsapp groups as private places is not realistic when the objectives and participants of such groups are considered. For example, can one realistically consider a WhatsApp group of lawyers who discuss the affairs of the bar, bench and the society as a private space?

“With the advent of social media, the meaning of ‘public’ changed. A virtual room with the telephone numbers of over 250 participants scattered all over the globe with or without personal relationships should not by any stretch of imagination be tagged as a private place.”

While Udems is fixated on the definition of ‘public’ in arguing that a WhatsApp group is a private space his well-written article, for curious reasons, he completely ignores the meaning of the word ‘private’ in his analysis. For the avoidance of doubt, the Black’s Law Dictionary (11th edition) defines ‘private’ as: ‘of relating to or involving an individual or confidential, secret’, Chambers 21st Century Dictionary (8th edition) inter alia defines the word as ‘relating to someone’s personal as distinct from their professional life, kept secret from others, confidential’, and the Longman Dictionary of Contemporary English ( defines the word as ‘a private meeting conversation etc involves only two people or a small number of people and is not for others to know or information or opinions not for other people to know’.

With the set up and objectives and discussions in most WhatsApp groups, one wonders if any participant or the administrator can reasonably see those proceedings as private and secret matters that must not be made public except of course, there are clear rules that such discussions must not be divulged to non-members of such virtual communities. WhatsApp groups are mostly online communities of most unrelated participants who co-exist virtually for discussions on such platforms for the purpose of entertainment, information dissemination and receipt and sometimes, for economic purposes, hence such platforms ought not be generalised as private spaces.

I agree with Udems that personal Whatsapp messages between two individuals remain in the realm of private conversations but the expression of opinions or dissemination of information on Whatsapp groups should not be view with same prism. While a Scottish Court in BC and others v Chief Constable Police Service of Scotland [2018] CSOH 104, ruled that WhatsApp group chats are private, a High Court in India conversely ruled that they are in the public real thus:

“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 personal accounts of two persons. If these messages had been posted on WhatsApp Group, in that case the same could have been called as public place because all the members of the group, will have access to those messages.” See Nivrutti v. State of Maharashtra and Pooja Nivrutti Criminal Writ Petition No. 557 of 2018.

I agree with the more logical decision in the Indian case while hoping the Nigerian courts will be availed an opportunity to rule on this very important issue in the not-too-distant future. This even becomes more relatable when an individual member on a group chat asks another to send him a private message – meaning he/she does not want the ‘public’ to see such interaction.

Conclusively, with respect to my learned teacher, Udems’ generalisation of all Whatsapp platforms (personal and group alike) as private spaces is rather dangerous especially in terms of reasonable expectation of privacy influenced by the composition of group members, personal autonomy, control and apportionment of obligations to group administrators. Since the world’s jurisprudence is unclear on the nature of Whatsapp groups especially, it is advisable for administrators and participants to set the tone on the privacy expectations of their respectful WhatsApp groups.

Olumide Babalola is Managing Partner at Olumide Babalola LP and Co-Founder, Digital Rights Lawyers Initiative 

 

You may also like