Does using WhatsApp on office laptop ‘kill’ privacy?

Salacious information shared orally is not protected by the right to privacy.

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The Employment and Labour Relations Court in Nairobi has made a judgment that has far-reaching implications on the right to privacy in Kenya.

In the case Musa and Another v Makini Schools Limited (2025), it held that private communication found in an employer’s computer is not subject to the protections given to a person under Article 31 of the Constitution of Kenya, which provides that every person has a right to privacy.

In the case, the claimant was dismissed for divulging defamatory information about Makini School to a social media personality. This was found to be in contravention of the school’s policy and, consequently, the school fired him.

His contention was that the dismissal was unfounded because the information that led to his dismissal was obtained illegally. It was his contention that since the information had been gleaned from WhatsApp messages from an account logged into in a computer owned by the school, the information was private and protected.

Therefore, there was a violation of his right to privacy and evidence based on such a violation was illegal. The school averred that the right to privacy is not absolute.

The court held that pursuant to section 6(1)(d) of the Access to Information Act, there is a limitation to the exercise of the right to privacy where the information involves unwarranted invasions of privacy.

Further, since the impugned WhatsApp messages were held in the company’s laptop, there was no invasion to the right to privacy.

The decision, while sweet music to the employer(s) has a chilling effect and must be criticised for its misunderstanding and misconception of the right to privacy.

To better conceptualise this, one must go back 100 years ago and what led to the development of the right to privacy.

The right to privacy

The right to privacy is an invention of the American jurist and later, the first Jewish justice of the Supreme Court of the United States, Louis Brandeis.

In a seminal paper co-authored with Samuel Warren, “The Right to Privacy” 4 Harvard Law Review 193 (December 15, 1890), authors argue that unlike laws regarding defamation which deal only with damage to reputation by lowering him in the estimation of his fellows, the right to privacy protects the domesticity of the information shared between two people.


The “domesticity” of the right to privacy

While one may argue that intellectual property rights protect illegal reproduction of a person’s private communication, intellectual property law cannot sufficiently protect the right to privacy. One writes a novella for public consumption.

If released to the public, intellectual property protects its illegal reproduction or distribution. When one writes a letter to a lover, that person does not intend to have someone else read what he or she thinks about her lover.

While copyright law can protect its reproduction and distribution, it cannot sufficiently protect that lover’s description of his or her lover.

This indicates that intellectual property is limited to illegal reproduction and distribution and thus cannot sufficiently protect the fact that someone does not want his or her “sexts” (to use lingo familiar with online communication) divulged if the “reproduction or distribution” sufficiently identifies him or her as the author.

As such, the protection afforded to thoughts, sentiments, and emotions, expressed through the medium of writing or of the arts, so far as it consists in preventing publication, is merely an instance of the enforcement of the more general right of the individual to be let alone.

Limitations on the right to property

According to Brandeis and Warren, these are the justifiable limitations to the right to privacy. Firstly, the right to privacy does not prohibit the publication of any matter which is of public or general interest.

The right intends to protect individuals from being dragged into an undesirable and undesired publicity for matters which the general public has no business knowing about.

Secondly, the right to privacy does not prohibit the communication in a court of law, in legislative bodies, or the committees of those bodies; in municipal assemblies, or the committees of such assemblies, or practically by any communication made in any other public body, municipal or parochial.

Thirdly, salacious information shared orally (what some call “tea”) is not protected by the right to privacy because it would be so trifling for the law to concern itself with oral communications between two people, however private.

The fact that the private information is true does not give a person the licence to share that information. What one must look at is not redress for injury to the individual's character but redress for injury to the right of privacy.

Facebook acknowledges the domesticity of a Facebook or WhatsApp account and states that “anyone who uses Facebook owns and controls the content and information they post, as stated in our terms. Users control how that content and information is shared. That is our policy, and it always has been.”

The right to privacy protects the private/domestic nature of any communications made in the online account owned by the employee. The fact that the communication is made on a device owned by an employer does not kill the ‘domesticity’ of the communication therein.

For one to assume that an employer can access such information because its sharing relies on a device owned by an employer gives carte blanche for the violation of the right to privacy by employers. Therefore, the learned judge misconstrued what the right to privacy entails as conceptualised in the paper that invented the right.

The writer is an advocate of the High Court of Kenya, a scholar and a partner at KOM Advocates

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