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Our appreciation to De Rebus SA Attorneys' Journal for providing this article. For more information please visit De Rebus at www.derebus.org.za Intercepting communications How private are your telephone calls and can they be recorded without your knowledge? by Alayne Meinesz Most of us are aware that we have a fundamental right to privacy and that this right is constitutionally protected. We are not always aware, however, how far this right will go to protecting what we deem to be private communications and in what circumstances our right to privacy may be ousted. The Constitution states at s 14 that ‘everyone has the right to privacy which includes the right not to have … the privacy of their communications infringed’. The Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (See 2005 (Dec) DR 38 – Editor) (which came into effect on 30 September 2005) (the Act) repealed the Interception and Monitoring Prohibition Act 127 of 1992 (the IMP Act) and provided more specific parameters in relation to the right to have private communications as set out in the Constitution. The Act provides for a general prohibition of the interception of communications at s 2 where it 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’. Although the word ‘intercept’ was initially interpreted in the context of the IMP Act by the court in the case of Diablo Trade 28 (Pty) Ltd and others v Madiba Air (Pty) Ltd [1999] 3 All SA 305 (W) to imply that the interception must have been done by a third party to the conversation, the Act has now defined ‘intercept’ to mean ‘the aural or other acquisition of the contents of any communication through the use of any means’ and as such it includes the recording of a communication by a party directly involved in such communication. Exceptions to the general provision Relevant exceptions to the above general provision are contained in ss 4, 5 and 6 of the Act which state that interception is permitted in the circumstances set out below. Where the person intercepting the communication is a party to the communication (s 4). Accordingly any person is entitled to record his communications with another person without the other person’s or persons’ knowledge or consent. Where the prior written consent of one of the parties to the communication has been obtained (s 5). In these circumstances if one of the parties to the communication has provided its prior written consent, a third party may intercept that party’s communications with any other person without the other person’s or persons’ knowledge or consent. For example, if a trader on the JSE consents in writing, his employer may record all such communications. The interception is performed by a person in the course of the carrying on of any business where the indirect communication (which includes telephone, cell phone, e-mail, instant messaging and SMS) involves a transaction entered into in the course of that business (s 6(1)(a)), relates to that business (s 6(1)(b)), or which takes place in the course of the carrying on of that business (s 6(1)(c)). The telecommunication system concerned must also be provided or used wholly or partly in connection with that business and all reasonable efforts must have been made to inform in advance persons who intend to use such system that communications may be intercepted (s 6). Unlike the previous two exceptions this exception does not require the prior consent of either party to the communication but merely that one of the persons using the communication system has been informed that communications may be recorded. The privacy of communications in the workplace The exception contained in s 6 provides much needed clarity regarding the interception of communications in the workplace. An employer may intercept the communications of its employees if the employees have been adequately advised of such interceptions and where the communication falls within the provisions of either s 6(1)(a), (b) or (c). An employer may, in addition, intercept a communication for the purpose of investigating or detecting the unauthorised use of the telecommunication system. Therefore, even where an employer has made all reasonable efforts to inform employees of interception, such interception will be considered to have been performed within the confines of the Act only where the communication falls within either s 6(1)(a), (b) or (c). Personal information of an employee intercepted by an employer will not have been obtained within the confines of the Act as, in most cases, it does not relate to the business of the employer. Could such information still be used against an employee in court? Use of information in court Where communications have been intercepted in violation of the Act the court may, in addition, consider whether a person’s right to privacy has been infringed which will, of course, include a constitutional assessment of the specific facts to the case at hand. It must also be borne in mind that even where evidence is obtained unlawfully, for example where an employee has not been informed that his communications may be intercepted, a court will still, in accordance with the general rules of evidence, have a discretion to admit such communications as evidence if the court deems the communications to be sufficiently relevant (See Waste Products Utilisation (Pty) Ltd v Wilkes and another 2003 (2) SA 515 (W) at 547–585 in this regard). In this case the onus would be on the party seeking to benefit from the information to prove that although the information was unlawfully obtained and/or infringed the person’s right to privacy, the court should exercise its discretion in favour of admitting the evidence. Conclusion There are, of course, consequences of intercepting communications where none of the exceptions in the Act exist. Section 49(1) of the Act states that any person who intentionally intercepts or attempts to intercept, or authorises or procures any other person to intercept or attempt to intercept, at any place in South Africa any communication, other than as per the exceptions set out above, is guilty of an offence. If convicted of such an offence a person may be liable to a fine not exceeding R2 000 000 or to imprisonment for a period not exceeding 10 years.