Saint threatened to name and shame customers with huge unpaid tabs, but is it legal according to POPIA?
|Published
Johannesburg - As the year draws to an end South Africa’s festive season is in full swing.
Malls are getting busier, the braais are more frequent and the nightlife of partying and socialising goes into overdrive.
Restaurants, bars and lounges look to this time of year to cash in and maximise profits.
So what can these establishments do when their patrons don’t hold up their side of the bargain and pay what is due at the end of a night of revelry, drinking expensive alcoholic beverages and taking pictures for Instagram?
Saint Champagne Bar and Lounge in Cape Town had devised creative ways to ensure payment from patrons who have yet to pay their bills.
The establishment has harnessed the power of social media to name and shame errant customers.
Saint via their Facebook account issued an urgent notice requesting that all patrons who had outstanding balances pay within 12 hours or risk being exposed on social media.
The statement read: “Attention to all customers owing Saint Champagne Bar and Lounge. Please note that you have 12 hours to pay your outstanding and overdue payment balance.
“Should you not pay your outstanding balances within the stipulated time we would have no choice but to make your identities public on social media with your outstanding amounts.”
According to Timeslive one of the “most wanted” customers, owed R224 000 while there are other patrons who have outstanding tabs of around R150 000, R110 000 and R90 000.
Social media users commenting on the post had different opinions.
Some criticised the patrons and accused them of living fake lives just to impress people; while others blamed Saint for allowing customers to drink on credit or run tabs.
Some found the humour in the situation with comedian Donovan Goliath taking to social media application TikTok to poke fun at the debacle.
@donovangoliath 😬![CDATA[]]>😬![CDATA[]]>💵![CDATA[]]>💵
♬ original sound - donovan Goliath
Saint’s move on social media seemed to have the desired effect as some patrons were said to have made partial or full payments while others were said to have made arrangements to settle their outstanding bills.
While the actions by the establishment may have been somewhat successful one does wonder if the actions are legal. Can businesses out individuals on public platforms to collect an outstanding debt? How does the Protection of Personal Information Act (POPIA) apply in this instance?
The Protection of Personal Information Act, 4 of 2013 is there to protect personal information and ensure that the right to privacy in terms of the Constitution are upheld. The POPIA further aims to protect an individual’s right to privacy by prohibiting the unlawful collection, disclosure, retention and use of personal information.
Unathi Dlamini, an associate at Shepstone & Wylie Attorneys analysed the posts by Saint and found that the posts did not fall foul of POPIA.
“The posts of the individuals, save for one, include the individual's IG handles that are ‘available’ or ‘accessible’ to the public i.e. if I wanted to add one of these individuals to my IG network, I could search their handle and it would be available. This information does not fall within the ambit of POPIA.”
“There is one post that does not include the individual’s IG handle and has his name in full and his alias. It may be argued that this post falls within the ambit of POPIA, however, the publication of the name did not appear with other personal information relating to the person. Overall, the information that was published on the posts is not categorised as ‘personal information’ in terms of POPIA,” said Dlamini.
While the actions by Saint were found not to have contravened POPIA, other establishments would not be advised to follow suit as subjects of such posts may choose to take legal action, in the form of claiming for defamation, depending of course on the merits of the case.
“There are avenues of recourse available to the affected patrons: firstly, the patrons can argue that their constitutional right to privacy has been infringed. The right to privacy is provided for in section 14 of the Constitution and the patrons can argue that the posts unnecessarily breached their constitutional rights by publicising a situation that should not have been brought into the public domain. Secondly, the affected patrons can claim defamation,” said Dlamini.
To be successful with such a claim, the patrons will need to prove the following:
– The statement must have been wrongful.
– The statement must have been intentional.
– The statement must have been published.
– The statement must have been defamatory.
Dlamini offered some advice for businesses that may want to offer their customers similar credit lines or tabs as in the case of Saint.
“From a legal perspective, the route that would best safeguard all parties involved would be to have the terms and conditions of the ‘tab’ in writing, with the amount owed, repayment terms and full details of all parties clearly set out.”
“If there is a breach of this agreement, Saint Lounge and any other establishment in a position similar to theirs can send out Letters of Demand. If payment is still not forthcoming, a summons can then be issued against the defaulting parties,” said Dlamini.
She also reiterated that while outing defaulting patrons may garner social media interest the benefits are not very significant.
“Situations such as these that play out on social media gain traction, very rarely for the right reasons. Naming and shaming are not a sure-fire way of protecting your interests and more often than not, the gains are very minimal in the grand scheme of things,” Dlamini concluded.
vusi.adonis@inl.co.za
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