If I have access to some else&#39;s Whatsapp, can I use it as evidence?
<p>I have a client who asked me the following question.</p>

<p>Her husband gave her access to his Whatsapp as a trust exercise. She then used it to open Whatsapp web on her computer and follow the conversations (he doesn't know that she has the whatsapp web access). She then found out that he is cheating on her and wants to send this to the other party's mate.</p>

<p>Can she use the web chats as evidence or will it be viewed as she puts it, unethical hacking?</p>

<p>I did refer her to a lawyer, but I am now interested to hear what the answer could be.</p>

<p>The <a href="https://www.gov.za/sites/default/files/gcis_document/201409/a25-02.pdf" rel="nofollow noreferrer">current law</a>, Chapter XIII, simply says that</p>

<blockquote>
  <p>a person who intentionally accesses or intercepts any data  without
  authority or permission  to do so is guilty of an offence.</p>
</blockquote>

<p>The law does not say what constitutes "authority or permission". "Sharing" an account typically constitutes giving permission to access the account. The <a href="http://pmg-assets.s3-website-eu-west-1.amazonaws.com/NA_bills2017_bill06B-2017.pdf" rel="nofollow noreferrer">most recent proposed update of the law</a>, slightly clarifies that issue saying (Chapter II)</p>

<blockquote>
  <p>(3) For purposes of subsection (2),"unauthorised" means that the
  person—</p>
  
  <p>(a) is not himself or herself lawfully entitled to secure access;</p>
  
  <p>(b) does not have the lawful consent of another person who is lawfully
  entitled to secure access; or</p>
  
  <p>(c) exceeds his or her entitlement or consent, to secure access, to
  data, a computer program, a computer data storage medium or a computer
  system.</p>
</blockquote>

<p>Still, this does not clarify whether account-sharing constitutes limited permission to access the data. Since the issue here is whether criminal prosecution is possible, the law would need to be much clearer, that is, a person cannot be prosecuted for a crime based on a party saying "But I didn't think that she <em>would</em> actually look at the evidence of my infidelity". </p>

<p>It is unclear what the analog of the US exclusionary rule in SA, but it is unlikely that it would protect against using such evidence in a civil matter (such as a divorce) – it isn't excluded in US civil cases. There could be statutory exclusions (such as the common law that illegal wiretap evidence cannot be used in any court proceeding), but there does not seem to be any specific exclusionary provision in existing or proposed SA law.</p>

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