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Two legal requirements you must meet BEFORE you start to monitor your employees' communication

by , 18 June 2013
The British government spied on South African Diplomats in 2009. That's according to media reports that the British government hacked into computers and phones of South Africa's foreign ministers during the G20 meetings and G8 summits that year. While an investigation by the South African government into these claims is underway, do you know what the law says when it comes to monitoring your employees' communication? Read on to discover the two legal requirements you must meet to monitor your employees' communication.

South Africa has reacted angrily at the revelations that politicians and senior officials were spied on and bugged during the 2009 G20 summit in London, The Mail & Guardian reports.

Its alleged Britain's government communications headquarters was trying to find out more about the position of former president Thabo Mbeki's government on global economics and finance.

According to The Washington Post, British intelligence agents had gone as far as setting up fake Internet cafés and tapping into cellular networks of diplomats and foreign officials to keep tabs on officials.

While you may not have intelligence agents doing the ground work for you, do you know that reading your employees' email could results in a fine of up to R2 million?

That's right. The Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA) protects the privacy of your employees and prevents you from monitoring their email as a general rule.

But you can monitor the use of computer and other communication tools if you meet the two requirements of the Act.

It's crucial that you know what these requirements are because, while you may need to reduce the abuse of communications tools like a computer or telephone, you need to do it legally. Contravening the Act means you risk being fined up to R2 million or being sentenced to imprisonment for up to ten years.

Two ways to monitor your employees' communications legally

According to The Labour Law for Managers Loose Leaf Service, the RICA Act only allows you to monitor your employees' communications if you:

#1: Obtain written consent from your employees. According to the Act, you may intercept (and read) email if one of the parties to the communication has given prior consent in writing to this interception. In this case, your employee's consent.

While employees may not willingly agree to this breach of privacy, you can obtain prior consent in writing by having a communications policy that forms part of employees' contracts of employment. Any new employees will have to accept the policy when they accept employment with you.

For existing employees, the best thing to do is to introduce or amend your existing communications policy to inform your employees in advance that their email may be monitored.

#2: Monitor the email or communication in the course of carrying on a business. According to the Act, you may also, in the course of the carrying on any business, intercept any indirect communication such as email and telephones that:

  • Results in a transaction being entered into in the course of your business, for example, agreeing to sell a product at a certain price; or
  • Otherwise relates to your business, for example, providing a quote on your product); or
  • Otherwise takes place in the course of the carrying on of your business, in the course of its transmission over your telecommunications system, for example, responding to a query from a customer.

Remember that you may only intercept emails and telephones if this is authorised by the system controller in your company.

There you have it. The two instances where you're allowed to legally monitor your employees' communications. Ensure you adhere to the Act and avoid a hefty fine, jail term or nasty blow up like that the British government is facing for spying on South Africa.

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