Monitoring of Communications

Employers often monitor employee communications in order to gather the evidence required to dismiss an employee fairly.  The law dealing with the monitoring and interception of employee communications is governed by the tongue-twistingly named Regulation of Interception of Communications and Provision of Communication Related Information Act, 70 of 2002 (RICA) which finally came into effect on 30 September 2005.

MONITORING & INTERCEPTION

The fundamental principle of RICA is that communications cannot be monitored or intercepted unless in accordance with RICA and to do so is an offence.

“Monitoring” involves observing the flow of information usually with the aim of collecting information. Monitoring may involve catching, diverting or blocking the communication (“intercepting” it), or accessing some of the information caught, keeping the information, disclosing it to others or deleting it.

Both “monitoring” and “interception” are governed by RICA, irrespective of whether the monitoring is continuous (i.e. it takes place indefinitely – e.g. where antivirus software scans email activity continuously), once-off (as a short term measure in response to a particular problem) or covert (e.g. to gather evidence to prove allegations of misconduct where notification to the employee would prejudice the investigation).

RICA specifically refers to both “direct” and “indirect” communications. “Direct” involves face-to-face, predominantly oral discussions and “indirect” involves which include post and all forms of electronic communication or telecommunication, such as telephone, fax, email, SMS and instant messaging, even an employees access to  corporate systems, network etc. RICA also requires all telecommunication service providers (including Internet service providers (ISPs) and cellular network providers) to make it possible to intercept e-mails and cellphone calls and other electronic communications.

In terms of RICA, offences are punishable by heavy penalties which include a fine of up to R2 million or imprisonment for up to 10 years.

UNDERSTANDING RICA

Tags: internet usage policy, monitor, monitoring employees email, RICA