Baker McKenzie

…In South Africa, the Regulation of Interception of Communications and Provision of Communication-Related Information Act regulates the interception and monitoring of employee communication in the workplace.

Section 2 of RICA contains a general prohibition against intentional interception of any communication. Two notable exceptions to the general prohibition are (1) the employee consented to the interception, or (2) the interception was done for a general business purpose. Employers can readily ensure that they obtain the consent of the employees by inserting such a provision in an employment contract or into a well-drafted policy. It is simpler to rely on and prove prior consent than satisfying the requirements for the general business purpose exception.

Employers may be guilty of an offence and held liable to a fine of up to R 2 000 000, or even imprisonment for a period up to 10 years, if they breach the RICA prohibition on interception.

Getting employee consent before interceptions communication is not only the right thing to do to stay out of jail or avoid a hefty fine, but it will also assist in managing the employee relations climate. Employees who know that their communications are monitored and have consented to it being intercepted are less likely to feel aggrieved when their employer takes such steps. Employees should be expected to feel disgruntled when they labour under the misapprehension that their private emails are safe from employer scrutiny when, in fact, the employer intercepts or monitors it.