Legality Of Monitoring E-Mail At The Workplace: A Legal Update

It seems fair to assume that employers provide e-mail facilities to employees as tools intended for workrelated activity. As such it further seems fair to assume that employers would have the right to monitor such e-mail messages. However, the question arises as to how far the right to privacy – one of the fundamental rights contained in the Bill of Rights in the South African Constitution – may curtail an employer’s assumed right to the monitoring of an employee’s e-mail communications. Section 14 of the Constitution states that everyone has the right to privacy, which shall include the right not to have their person or home searched; their property searched; their possessions seized; or the privacy of their communications infringed. It is said that section 14 protects information to the extent that it limits the ability to gain, publish, disclose or use information about others. While stressing the importance of the right to privacy, the Constitutional Court nevertheless stated that “the protection accorded to the right of privacy is broad but it can also be limited in appropriate circumstances”, and that the scope of a person’s privacy should extend only to those areas where he/she would have a legitimate expectation of privacy. In December 2002, the President assented to the Regulation of Interception of Communications and Provision of Communication Related Information Act (RICA). RICA prohibits the interception of communication (inclusive of direct and indirect communication), unless it is intercepted by a party to the communication, or if an author of the communication has consented thereto. Law enforcement officers may intercept communications under certain conditions. In the case of the interception of indirect communications in the business environment, same may only be intercepted in accordance with the provisions of section 6 of RICA. This means, amongst others, if the person who is a party to the communication is aware of the fact that the communications could be intercepted. Employers had previously successfully intercepted e-mail communications of employees, which had resulted in some highly publicised dismissals. RICA is now placing an obligation on the organisation, which usually means the IT Department, to inform employees of the organisation’s intention to intercept both direct and indirect communications. The aim of this paper is to provide the legislative framework within which organisations may intercept e-mail communications of its employees.