Communication is central to modern business, and employers provide their employees with communications facilities to allow them to operate effectively.

These facilities usually include access to a telephone and email, but as technology progresses, new media such as instant messaging, VOIP and social media are becoming available to employees.

While new technology brings great benefits for productivity by making communication easier, this ease also creates dangers for the employer. What if the marketing manager is sending client data to a competitor?

Is the bookkeeper siphoning off funds? An employer often feels the need to monitor employee communications, and because it owns the communications system, feels justified in doing so.

Right to Privacy

Employees themselves often feel that they have a right to privacy, and that the employer should not be allowed to “snoop” on their communications. Section 14 of the Bill of Right in the Constitution indeed gives them a right not to have the privacy of their communications infringed.

Fortunately for the employer the right to privacy, like all rights, can be limited under certain circumstances, and the employer can indeed monitor employee communications if the monitoring is done correctly.

RICA

Interception and monitoring is governed by the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 70 of 2002 (“RICA”). While RICA forbids interception of communications as a rule, employers can intercept in two situations.

Firstly, if an employee (or any person for that matter) consents to interception of his or her communications in writing, then interception is lawful.

The best way to obtain the employee’s consent is to draw up a communications policy and make use of the communications facilities provided by the employer conditional on consent to the policy.

This is easier to do where computers are used for communication, as an employee can be forced to agree to the policy each time he or she “logs in” to the computer system.

Secondly, RICA allows an employer to intercept business-related communications. Where communications are made using the employer’s facilities, they will probably always be regarded as business-related, but be careful: RICA sets out a few requirements that must be met before the employer can intercept the employee’s communications.

For example, the employer must notify employees in advance that communications may be intercepted, and can only intercept communications for certain bona fide purposes.

Policy

So what is the best approach? It may be difficult to get ALL employees to consent to interception (especially existing employees), but then communications can still be intercepted if they are notified that interception will take place in terms of an established communications policy.

It is a good idea to do the following:

  • Draw up a communications policy. Compliance with the policy would include consent to interception.
  • Have employees agree to comply by the policy, and make compliance with it a term of all new employment contracts.
  • Publicise the policy, and especially the fact that interception may take place.
  • Train staff and management in the policy
  • If the policy contains disciplinary provisions, enforce these consistently

This article should not be used or relied upon as professional advice and is for information and marketing purposes. Please consult with one of our attorneys should you need legal assistance relating to this area of law.