Articles

When can employers intercept electronic communication?

Sowetan 22 January 2008
By Lavery Modise & Felicia van Rooi

Employees often abuse electronic facilities which are supposed to improve the efficiency of the business.

Examples of this include employees wasting the company's valuable working time by surfing the internet, playing games, running their own businesses and viewing pornographic material.

Employees could also use email to distribute business secrets. These scenarios can harm a business.

Does an employer have an automatic right to monitor and intercept electronic communications in order to take disciplinary action against an employee?

The Regulation of Interception of Communications and Provision of Communications-Related Information Act, which came into effect in 2005, deals among others matters with the circumstances under which an employer can intercept electronic communication.

It prohibits the interception of any electronic communication by anyone except the sender or the intended recipient, unless prior consent is given, or interception is indirect, due to the normal carrying out of the business.

If, for example, the supervisor of an employee is a party or is copied on an email sent by an employee which warrants discipline, the supervisor can intercept this email and use it in disciplinary proceedings without obtaining the consent of the employee whom he seeks to discipline.

It’s important that employers include in the employment contract a clause in which employees give written consent for all electronic communications to be monitored and intercepted by an employer.

Employers can also introduce an electronic communications policy which sets out what constitutes acceptable and unacceptable email and internet usage.

The policy should define various terms such as pornography and this policy must clearly stipulate the disciplinary action which can be imposed should an employee be found guilty of violating the policy.

Employers who don’t have prior written consent cannot, under the Interception and Communications Act (unless given the two exceptions discussed), use electronic communications as proof of misconduct.

Talk to a specialist

Felicia van Rooi

Partner
011 775 6389
E-mail Felicia van Rooi

Talk to a specialist

Lavery Modise

Chairman
011 523 6011
E-mail Lavery Modise