Interception of Employee Communications in the Workplace

In the technology-driven age that we live in, employers are more frequently finding themselves in the situation where they need to monitor their employees' email or internet use, either to investigate suspected wrong-doing or to prevent the abuse of company resources.

Section 14 of the Constitution provides that everyone has the right to privacy.  This right includes the right to privacy of one's communications. An employee's right to privacy is, however, not unlimited. The legislature has provided employers with the means to lawfully monitor their employees' emails.

It is important that employers ensure that any workplace monitoring and/or interception is done in compliance with the relevant legislation.

The Regulation of Interception of Communications and Provision of Communication-Related Information Amendment Act 70 of 2002 (the Interception Act) governs the monitoring and interception of communications including emails.

There is a general prohibition on interception except in certain limited circumstances. Section 6 of the Interception Act sets out the instances in which communications may be intercepted in a business context.

An employer can intercept the communication of its employees (using its telecommunications system) in two ways:

  • By obtaining prior express or implied consent from its employees to monitor and intercept their communication.
  • By informing its employees in advance that all communications transmitted and received in the workplace may be intercepted by the employer.

The limited exception in which employers may lawfully intercept and monitor employee emails necessitate that there be appropriate workplace policies in place to cater for interception and monitoring. Similarly, the provisions inserted into contracts of employment will be relevant in ensuring the valid interception and monitoring of employee communications.

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