Unwanted Messages Is Trespass – Court
By Dickson Jere
A banker worked at NATSAVE as Treasury Manager. The bank used his personal phone number to register for bank account with another bank – Indo Zambia Bank. So, all the messages from the bank were being sent to this number of the employee. However, in 2023, his contract of employment came to an end and left the bank. He also notified the bank to remove his phone number from the signatory and authorization with Indo Bank.
Months passed but continued receiving messages from the bank. He wrote the bank complaining that the unwanted messages to his phone were affecting him and requested that the bank change the credentials. The bank did not remove him.
He then sued NATSAVE in Lusaka High Court for trespass on his phone and demanded K1.5 million as compensation. The bank did not call any witnesses but raised a point of law. Is there trespass on the phone via messages? The bank argued that trespass can only be on land or chattels, which do not involve messages on the phone.
The Court heard both arguments and noted that this case was novel and unique in that trespass has customarily involved land in most cases.
“It is clear that in a matter involving a well founded claim would not fail merely on account that there was no physical interference or control of the physical asset or damage done to it by the tortfeasor,” the Judge noted.
“In this present case, I find the Plaintiffs claim for trespass contextually tenable. The claim for damages for trespass to the Plaintiff phone succeeds,” the Court ruled.
The Judge, however, ordered that the ex banker be paid K30,000 in damages for trespass instead of the K1.5 million claimed which was “excessive”.
The Court said evidence showed that the banker received a “barrage or bombardment of unsolicited messages, with utter contempt” and repeated pleas for the bank to stop fell on deaf ears.
“The Defendant’s trespass was not only committed on day one or occasion, but continued from time he left employment…” the Judge said.
“The nature of the discomfort was to the extent that the quietness of his retirement was disturbed by the barrage of authorization text messages from his former employer, as if he was still in active service, sent to his phone without consent,” the Court said.
The Judge noted that it was actually in the interest of the bank to remove the ex-employee from the signatory authorization and receiving text messages from the bank as it could have triggered fraud.
“In the age where a thief can remotely steal more with a computer than through a gun, the want of the duty of care on the part of the Bank to honour the Plaintiff’s request was concerning,” the Judge observed with dismay.
Case citation- Charles Mwila v National Savings and Credit Bank – 2023/HP/1771 and Judgment delivered on Thursday last week.
Lecture notes;
1. This is groundbreaking case as it now extends trespass to text messages and WhatsApps being sent to phones. If one does not like the constant unwanted messages, one can now sue for trespass. This is why most email and marketing products gives you an option to unsubscribe to avoid such litigation.