The regulation of Interception of Communications Act

Late in December 2002, while everybody was enjoying their holidays, government gazetted the much-hyped Regulation of Interception of Communications Act.

This act has wide-ranging implications for businesses:

1.       All employers need written consent from employees if they want to intercept employee communications like e-mails; and

2.       Internet service providers and cellphone operators need to invest in technology that would make it possible for the state to intercept e-mails and cellphone calls.

1) Written consent to intercept e-mail communications of employees

Recent media articles stating that employers need the written consent of employees to monitor and intercept e-mail communications and Web site access have caused concern for employers and the legal fraternity alike. Now two Cape Town law firms have joined the debate by stating that written consent is indeed not necessary for an employer to intercept employee communications.

The debate centres on the interpretation of two sections of the new Regulation of Interception of Communications Act 70 of 2002 that was gazetted in December 2002. Section 5 and Section 6 of the Act are exceptions to the general rule that nobody may intercept another`s communications, including e-mail, SMS, post and telephone conversations.

In terms of Section 5, any person, including an employer, may intercept a communication if one of the parties to the communication has given his or her prior written consent to such interception.

In terms of section 6(1) of the Act, any person may, in the course of carrying on of any business, intercept any indirect communications. Indirect communications include e-mail, Web site visits and SMS. Section 6 is, however, very limited from a technical and labour law perspective.

"Employers will be ill-advised if they only rely on section 6 (1) to assist them in this regard, as this section only relates to the interception of a communication in the course of its transmission over a telecommunication system. This implies that employers may only intercepted communications without written consent while it is in the process of travelling over the Internet or a corporate intranet," says Pravesh Singh, an attorney at Buys Incorporated Attorneys, a Cape Town law firm specialising in Internet law.

Take for example the situation where an employee accessed adult sites on the Internet and saved graphic downloads in a personal folder on his/her computer`s hard drive. The only evidence the employer can use in a disciplinary hearing is the actual saved file and evidence in the employee`s Internet history folder. Section 6(1) will not assist the employer at all, as these where not intercepted in the course of its transmission over a telecommunications system.

Few employers have access to the sophisticated technology to intercept communications while it travels over the Internet and once an e-mail arrived at its destination, the section 6(1) right to intercept ceases.

Furthermore, recent labour law matters such as Jacqueline Bamford and Four Others vs Energizer (SA) Limited showed that employers rather access employees` computers to obtain the necessary evidence during disciplinary hearings and does not collect the necessary evidence as it travels across the Internet or a corporate intranet.

It is hard to imagine how an employer will know how and when to intercept incoming e-mail messaged if they only rely on Section 6(1).

"The best solution is to have a clause like the following in all employment agreements: The employer reserves the right to access, monitor, read, filter, block, delete, use and act upon any incoming or outgoing e-mail message send or received by the employee, attachments to such e-mails, hyperlinks in such e-mail messages or attachments, Web sites visited by the employee and files or records saved automatically or by the employee on the employer`s equipment," says Singh.

Reinhardt Buys of Buys Incorporated Attorneys says: "Getting consent to intercept employee communications is, however, only the first step employers should take to protect themselves against the risks associated with the use of electronic communications by employees. We provide an eCommunication Policy to our clients that details matters such as acceptable and unacceptable e-mail and Internet use, IT security and disciplinary procedures Employers should avoid vague terms like 'pornography` and 'racism` in these policies and may save time and money by defining such terms. A definition of 'pornography` that seems to be working well is a definition that refers to the schedules to the Films and Publications Act."

Those that advise their clients that written consent is not necessary for interception should also inform their clients of the limitations thereto. It seems that written consent remains the only true and effective solution to balance the rights of the employer with the privacy of the employee.

2) Interception of e-mails and cellphones by the state

The Act states that ISPs and cellphone providers must make it possible to intercept e-mails and cellphone calls. These businesses will have to get the necessary technology in place and set up data lines to so-called provincial interception centres at their own cost.

Furthermore, ISPs and cellphone operators will have to retain e-mail and call-related information for specified periods.

However, the state can only intercept communications after obtaining a court order.

We suggest that companies should investigate the following to be compliant with this Act:

Change HR agreements to make provision for interception of employee communications, and obtain the necessary document management and interception technology. In this regard, Buys Inc recommends our IT infrastructure solutions partner, Enterprise Connection.

Readers can contact Reinhardt Buys of Buys Inc Attorneys for a copy of the Act or free one-hour in-house information sessions on (021) 461-7387.