SA eavesdropping law activated
Regulation according to the Interception of Communications and Provision of Communication Related Act 70 of 2002 (bar sections 40 which deals with SIM-card vendors obtaining purchasers’ details prior to selling the product, and 62, which repeals the previous act) started on September 30, according to the October 5 edition of the government gazette. Section 40 only comes into effect on November 30.
The act states: “no person may intentionally intercept or attempt to intercept… any communication (either direct – such as face-to-face meetings – or indirect – through the transfer of information via a telecommunications system) in the course of its occurrence or transmission.”
Those caught intercepting communication unlawfully could face a fine of up to R2m or 10 years’ imprisonment.
Speaking on Moneyweb Radio, Lance Michalson of Cape Town-based Michalson Attorneys, says the law is aimed at protecting individuals’ constitutional right to privacy: “That right is clearly infringed when you monitor their e-mail, in circumstances [where you] don’t have their permission. So what the monitoring act seeks to do is to allow one to monitor e-mails at work, if certain processes have been put in place to make it lawful under the legislation.”
This creates a dilemma for employers, who often use e-mail as a source of evidence in disciplinary enquiries: “[Companies must] come to grips with the legislation, primarily because it places everything at the foot of what they call a system controller. A system controller is the CEO of a company, or the managing director if there isn’t one. Now clearly the CEO and the MD don’t have the time or the expertise to do the monitoring. So there are going to have to be proper delegations in place in the IT department, and the IT department is going to have to monitor in accordance with the requirements of the act, or else it’s the CEO who could end up getting fined or going to prison.”
Michalson says that while some describe the legislation as draconian, it is in line with international developments: “It’s a problem that one encounters throughout the world, and one ultimately has to try and find a balance between an individual’s right to privacy and the right of the company to protect its business interests. The drafters have done quite a good job of getting that balance right. One can’t monitor with impunity. In a lot of instances one has to get an order from a judge, or one gets written consent of the people concerned. So there’s a lot of leeway for people to get on with business, but at the same time for employees not to have their rights to privacy infringed.”
Source: http://www.moneyweb.co.za
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