Have you ever wondered whether there is anyone at the other end listening to your conversation or can tap into your conversation anytime with or without your authorisation? There are chances that while you are having a conversation with your friends, children, spouse or workmate, your calls are automatically recorded so that they can be accessed anytime when the need arises. That is why you need to know the legalities as to when your call recordings can be accessed by third parties and to what extent are telephone companies liable if they avail your call recordings to a third party without exercising proper legal steps.
First of all, to buy a sim card, you must sign documents which in short, amount to a contract between the sim-card user and the telecommunication company. The contract is a binding one and it creates a fiduciary relationship between both parties. In other words, there is some form of confidentiality which the telephone company must keep between itself and its customers. Also, a duty of care arises whereby, the telecommunication company has to exercise and breach of which amounts to negligence.
The leading case of Celtel (U) Limited V Karungi Suzan Civil Appeal No.101 Of 2011 discussed these principles in detail.
On 06/03/2009, the appellant was served with a court order purporting to be from the court magistrate Buganda road, the court order required the appellant to avail telephone records between the respondent and another person. The telephone number referred to in the court order was 072495067. In an attempt to comply with the said court order, the appellant released call records of the number 0752495067 which number belonged to the respondent. Subsequently, the respondent’s husband as he then was, relied on the said call recordings in a divorce case which led to the respondent being kicked out of her matrimonial home.
The respondent, aggrieved by the actions of the appellant instituted a civil suit against the appellant in the magistrate court alleging breach of confidence and breach of trust. She also sought special and general damages. The trial judge ruled in the favour of the respondent and hence the appeal.
Issues were raised at the appeal.
1. The learned magistrate failed to evaluate the evidence on record and made an erroneous judgement.
2. The learned magistrate errored in both law and fact by holding that the court order dated 5th march 2009 issued by Buganda-road court for issuance of call records of the number 0752495067 was not genuine.
3. The learned magistrate errored in law and fact by holding that the appellant acted negligently in issuing call records for telephone number 075245067
Analysis and holding.
The learned judge decided to join the three issues together so that the main issue would be whether the magistrate failed to evaluate the evidence on record and also errored by holding that the impugned court order was not genuine, and she also errored by holding that the appellant acted negligently in issuing the call records of the respondent without cross-checking with the court that issued the order.
It was the finding of the court that the trial magistrate evaluated the evidence on record and believed that pw2, one Wanchai Francis did not request for the call records of the telephone number 075245067. However much s.66 of the communications Act, as well as s.117 of the penal code Act, requires the telephone company to disclose a customer’s call records and compliance of court order respectively appellant did not exercise caution and due diligence.
The trial magistrate found on pages 66 to 67 of the record of the appeal “so the simple question is which of the 2 sets of documents is genuine.pw2 told the court that he does not know the 2nd set of documents that the defendant relied on to give call records for the plaintiffs' phone number, he discovered the signature in the affidavit in support and also pointed out that his particulars were filled by pen and not typed as it were in the 2nd set of documents dated 5/3/2009. Both DW1 and DW2 gave evidence to the effect that PW2 was given call records based on the 2nd documents of Buganda road chief magistrate court dated 5/3/2009.
I have no reason to doubt PW2 evidence that is contrite and has come to the conclusion that he indeed obtained call records from the defendant for 0754258396, handset no.35808201530314.DW2 admitted on cross-examination that there are flaws in the 2nd set of documents from Buganda road chief magistrate court that they relied on.DW2 admitted that the 2nd court order does not indicate the number of the application, it is blank and that there is an alteration in the applicants' police force number which alteration is not counter-signed. She too admitted that the applicant, PW2 was from Wakiso police station and that there is no chief magistrate’s court in Wakiso. This points to the fact that the 2nd set of documents, the court order application and affidavit in support on 5/3/09 are not genuine and were procured fraudulently by doctoring the 1st set of documents”
The appeal court agreed with the decision of the trial judge, that it was clear the court order allegedly issued by Buganda Road court for issuance of call records for telephone No 075245067 was not a genuine one.
Even though the appellant filed a purportedly certified copy of the impugned court order, it did so after the court proceedings were done and thus lacked evidential value. The thing that one would wonder about is how a magistrate could issue or even certify an order without the number of the application and with alterations that are not countersigned.
Whether the appellant was complying with s.117 of the penal code, and the Case Of Stanbic Bank And Anor Vs Commissioner-General Msc.Appl.No.42 Of 2010 which laid out a principle that whether null or valid, regular or irregular, cannot be permitted to disobey it and that litigants cannot decide on their own which orders to respect and which to ignore. This principle however did not liberate them from taking steps to verify the said court order especially after seeing serious pointers that raised an eyebrow.
Moreover, on cross-examination by the trial court, DW2, the appellants then legal officer stated on pages 55-56 of the record of the appeal “my qualifications are I am an advocate of the high court of Uganda. Yes, I know the law. Yes, I read through the whole court order. No, the court order does not indicate the number of the application. Yes, it indicates when the magistrate signed and sealed, it is 5/3/2009. At the top of this court order, it is indicated that the application was for 2008 but does not indicate the number. It is blank. No, I do not know of any court known as the Magistrate’s court of Uganda. No, I did not know of any magistrate court known as Magistrate/s court of Kampala at Buganda Road. The applicant was from Wakiso police station. No, to the best of my knowledge there is no chief Magistrate court like Wakiso. Yes, I can see an alteration of the applicants rank number in the police force.No, it is not countersigned by anyone”
The appeal court stated that the anomalies pointed out by DW2 were enough to alert the appellant that something was not right. That since she was an advocate of the high court, she was equipped with legal knowledge and expertise thus she ought to have been prudent enough to foresee the dangers of acting on such order, a duty she failed.
It was also pointed out by DW1 that the appellant handed call records to a stranger. Therefore, it was the court finds that the appellant failed to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. That they were negligent; as they failed to exercise the duty of care it owed the respondent as its customers with whom it had a fiduciary relationship by which the appellant had a duty to protect the respondents call records from unwarranted intrusion.
Consequently, the appeal court upheld the decision of the trial court and stated that the respondent’s marriage collapsed and she was kicked out of her matrimonial home as the result of the call records which were accessed by her then-husband and therefore upheld the reward of Shs. 7,000,000 and Shs.3000,000 and costs of the suit to the respondent.
As well discussed above, it can be safely concluded that your calls are safe and in case they are illegally tampered with, the result is not appealing.
The Writer Beatrice Mbabazi is a legal scholar and Researcher