Computers and networking equipment usually belong to the employer and the employer is generally entitled to monitor the work computer. This will include the searching for files saved on the computer hardware, as well as monitoring of an employee’s activities while using the computer (e.g. browsing the internet). In Moonsamy v The Mailhouse (1999) 20 ILJ 464 (CCMA) at 471G it was held that:
The rights that a citizen is entitled to in his or her personal life cannot simply disappear in his or her professional life as a result of the employer’s business necessity. At the same time the employer’s business necessity might legitimately impact on the employee’s personal rights in a manner not possible outside the workplace. Therefore there is a clear balancing of interests.
The employer has a right to control the working life of the employee and also has a right to protect the business interests and information relating thereto whilst balancing the interests of the business and the employee. The employer has the right to check emails or intercept communications utilizing the employer’s equipment. This will be limited to information relating to the work environment and not the employee’s personal information.
The employer protecting its business environment by monitoring emails and phone calls will fall in the category of limiting the rights of employees (in terms of section 36 of the Constitution) as long as the employer can prove that there is a business interest and that the equipment that is monitored, belongs to the employer.
The Regulation of Interception of Communications and Provision of Communication-Related Information Ac, No 70 of 2002 (the Act) is applicable when considering the right to interception of information and came into operation at the end of September 2005.
Section 2 of the Act states that no person may:
… intentionally intercept or attempt to intercept, or authorise or procure any other person to intercept or attempt to intercept at any place in the Republic, any communication in the course of its occurrence or transmission.
The Act makes an important exception as to when the interception of communications are allowed. These exception include circumstances where prior written consent was obtained and for business purposes. Section 6(1) of the Act states that:
Any person, may, in the course of the carrying on of any business, intercept any indirect communication (a) by means of which a transaction is entered into in the course of that business; or (b) which otherwise relates to that business; or (c) which otherwise takes place in the course of the carrying on of that business in the course of its transmission over a telecommunications line.
Section 6(2) then sets certain requirements that must be met before the interception of indirect communications in terms of section 6(1) will be permitted namely:
- The interception must be with the express or implied consent of the chief executive officer or equivalent officer of the juristic person, or any person duly authorised by such person and the latter;
- Must either have made all reasonable efforts to inform in advance all persons who intend to use the telecommunication system concerned of the fact that interceptions may take place, or the interception must take place with the express or implied consent of the person who uses the telecommunication system;
- This telecommunications system must be provided for use in connection with that business;
- Such interceptions must be carried out for specific purposes, namely, to monitor or keep a record of indirect communications where this is done to establish the existence of certain facts or to investigate the unauthorised use of the telecommunication system concerned or to secure the effective operation of the system.
Employers are generally allowed to check the emails and communications that are made from business equipment by the employees if there is good reason to do so that may generally include:
- Responding to a colleague’s harassment complaint;
- Investigating a data leak;
- Checking the quality of the computer system; or
- Responding to a government request for documents.
Employees should be aware that they do not have a legitimate expectation of privacy when using the employer’s email system to communicate with friends and family or even their own alternative email accounts, and should be continuously notified of this fact. If the employment agreement is salient on the point of privacy of information it would be worthwhile for employers to establish a firm internet policy containing a written employee consent allowing interception of information.
Barnard Incorporated is a firm of attorneys situated in Centurion, Pretoria.