Author : Millers Attorneys

Interception of Communication
Act 70 of 2002

The so-called Interception Act has been assented to but yet has to come into operation. The Act regulates the extent to which individuals and corporations may lawfully intercept and monitor their employees` communications e.g. monitor and access employees` e-mails, monitor websites, employees` browsers or records and employees` telephone conversations. Section 2 of the Act deals with the general prohibition and no person may intentionally intercept any communication in the course of its occurrence or transmission. The entity found guilty of such unlawful interception can face a R2m fine or 10 years imprisonment. Communication can be either direct or indirect. Indirect communication e.g. information by way of a telecommunication system or postal service including speech, music, data, visual images, etc. and direct communication in the presence of others, etc.

The Act recognizes instances in which it is lawful to intercept a communication e.g.

1. Any person (e.g. employer) may intercept a com-munication if he or she is a party to the communication.
2. Interception is lawful if one of the parties has consented in writing prior to such interception.
3. Any person may intercept an indirect communication in the course of carrying on any business. (The business exception). The requirements that the employer must meet in order to lawfully intercept a communication instance, relate to
a. the nature and content of the intercepted communication;
b. thee purpose for which the interception if effected;
c. the nature of the telecommunication system involved; and
d. the measure of control exercised over the interception process.

It is thus lawful for an employer to monitor telephone conversations, e-mails, faxes, etc. provided such communication is intercepted for a legitimate purpose such as:

1. to establish the existence of facts;
2. to investigate or detect unauthorized use of the employers communication system;
3. to secure the effective operation of an employer`s communication system or as an inherent part of the effective operation of such system.

The business exception applies only to indirect communications, e.g. telecommunications intercepted during the course of transmission. Thus e-mails and internet usage may lawfully be intercepted by an employer in the course of carrying on any business if all the requirements for lawful interception have been met. Face to face discussions and other forms of direct communication can not be lawfully monitored on this basis nor may employees` post be intercepted, nor other forms of indirect communication not transmitted over a telecommunication system. In addition the business exception ceases to apply once an e-mail or other message is downloaded (arrives) at its destination as the Act states that this interception must occur during the course of transmission.

The effect of the Interception Act is that anyone who intercepts communications on their own systems will need to be sure that their actions are legal either because their employees have consented thereto or because they fall within the ambit of the business exception. Interceptions not authorized by the Act are an offence which carries severe penalties. Clear and comprehensive rules and policies relating to the use by employees of the employer`s telecommunication system and the parameters thereof in respect of personal use of telephones, e-mails, the internet and so forth must thus be set out.

It is by no means clear how the courts will apply the business exception and it is therefore critical for employers to obtain a correctly worded written consent from current and future employees which will allow them lawfully to intercept communications in circumstances where the business exception does not apply.