Electronic
devices are extensively used to manage of facilitate communications in the workplace. Electronic devices include telephones, cellphones, desktops, laptops, tablets, etc. These are linked to other electronic devices such as a wifi-sytem, external storage devices, printers and the like.
The Regulation of Interception of Communications and Provision of Communications-Related Information Act, number 70 of 2002, also known as RICA, regulates many aspects of access to e-communications, including so-called “bugging and “tapping” of both phone calls and e-mail communications.
The Act dramatically impacts the way in which companies manage employee communication. The Act describes what constitutes “monitoring” involves s being “observing the flow of information”. The Act covers all types of electronic communications, including telephonic, Whatsapp and email.
“Reasonable efforts” must be used to inform employees “in advance” that electronic devices may be monitored. This means that Employers should either include such a clause in all Employment Contracts, or in a workplace policy such as a “Computer Policy”, an “IT Policy”, or even a “Internet and e-mail Policy”.
Should Employers fail to comply with this procedure, they will fall foul of the prohibition on monitoring as contained in RICA and may find themselves liable to a fine of up to R2 million or imprisonment of up to 10 years.
It is advisable for all employers to implement and maintain a customised workplace policy on the monitoring of all electronics used for communication as soon as possible, including e-mail, phone and internet browsing. Policies must be reviewed to ensure compliance with the Act.
Additional measures should include employee awareness training, amending customer contracts, e-mail disclaimers and automated disclosures where calls are recorded. Rules should also be established by Employers relating to any exceptions in this area such as allowing the principle of “bring-your own-device” (“BOYD” policy).
If you are uncertain, ask your legal advisor or practitioner to provide you with clear guidelines.