SA Text Messages Read During Affair - Stalking or Privacy Breach?

[difficulttodeterminelaw]

I'm writing for a friend who has recently admitted to to his ex wife that he read her messages to confirm she was having an affair. She claims it was illegal and he was stalking her, is threatening legal action.

They were married 16 years, with children and had no apparent significant relationship issues. He became suspicious after observing behavioural changes including flirting with the man she had an affair with and using her phone secretively and more frequently.

She passionately denied any infidelity and made him feel guilty about asking.

Eventually he accessed her phone, having noticed her pass and remembering it. He found clear evidence of the affair. He then continued to read the texts and frequently access their exchange - including during a period she vowed to stop the affair and try to salvage the marriage. This stopped when she left the marital home, or earlier.

Was this illegal - stalking or privacy breach perhaps?

I'm surprised there is little discussion about this on the net as it must be common.

 

[Sophea]

I dont know that it would be illegal, however she may have grounds to bring a civil law suit in trespass to property or similar. Check this other post out: VIC - Is it illegal to access someone else's mobile phone? | LawAnswers.com.au Legal Aid Forums

 

[difficulttodeterminelaw]

Thanks for responding.

I did look at that post. I wondered if the lines are more blurred given they were married and cohabiting, in terms of 'trespass to property'...

It seems quite vague, really.

 

[Ponala]

It is not a criminal offence.

 

[Ivy]

Firstly, I don't believe that your friend's behaviour would constitute stalking if all he did was check his wife's phone. Stalking is a form of domestic violence and can lead to police involvement, DVOs and so on. However stalking as a form of domestic violence is more along the lines of following someone, watching everything they're doing or other patterns of controlling, intimidating behaviour that induces fear into the victim. This isn't a precise definition but hopefully you get the idea.

In strict legal terms, Sophea is right, there may be a civil trespass issue here. However what that could come to in practice is another matter. It would take a lot of time and money to bring an action in trespass for a minor possible remedy.

This is clearly a family dispute and courts have been historically reluctant to interfere with families if they don't have to (for better or worse). That is why it took so long for marital r**e to be recognised as a crime and why it is still so difficult for partners who are abused to have a criminal conviction made against the perpetrator. DVOs are the most frequent result of domestic violence.

If your friend has been abusive towards his wife, then she can and should seek legal and/or police help. For example, just because she has cheated doesn't give him the right to behave violently or abusively towards her. However if all he has done is check her phone, then just give him support whilst the two of them sort out their relationship issues.