The protection of Personal Information Act (also known as POPIA) is looming large on the horizon, and ‘privacy governance’ is about to become a fundamental part of the way we conduct our everyday business.
Earlier on, the Regulation and Interception of Communications Act (known as RICA) posed many concerns in this regard.
Although the Constitution provides one with the right to privacy, this is not absolute.
“Section 36 provides that in order for a right to be lawfully limited the ‘limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom’. There must therefore be a legitimate expectation that the right to privacy may not be infringed upon in order to deem the infringement unlawful.”
RICA similarly prohibits all “…intentional interceptions of any communications during the course of its occurrence or transmission in the Republic…” and states that “…any recordings of conversations that have been done without consent are deemed unlawful.”
THE RICA ACT LISTS THE FOLLOWING 3 EXCEPTIONS:
- Where you are a party to the communication;
- Where you have received the written consent from one of the parties to the communication; or
- Where the recording has been made for purposes of carrying on business.
HOW CAN WE RELATE THIS TO AN EMPLOYER AND EMPLOYEE RELAITIONSHIP
By virtue of any communications occurring in the workplace or via the auspices of work resources such as telephones and computers, there is no legitimate expectation of privacy, as all communications would have been conducted during the hours of work
The recording or interception of communications (telephonic, emails etc.) is deemed to be a complex situation to navigate as its usually highly sensitive in nature. However, complying with at least one of the exceptions listed in the RICA Act will ensure your recording is admissible in a court of law and could very well be used as evidence.
Even if the law does not necessitate the obtainment of consent of the other party to the conversation, it is usually polite to inform them that you are recording it and is a sign of good faith and ethics.
Many clients will feel betrayed if they find out you have recorded their conversations without them knowing. Though they may not have any legal against you, but this could tarnish your business image and good name.
In summary, it is not unlawful for you to record conversations, provided you are a party to the conversation.
(This article is provided for informational purposes only and not to provide legal advice. For more information on the topic, please contact our offices.)
