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Internet and Email Interception

 

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A study at a company employing 600 employees found that employees spend almost 79% of their working time on gaming and Social Media Applications such as Facebook and TikTok. In another study it was found that almost 80% of the email sent and received by employees during working hours were of a private nature. One can only imagine what the productivity levels are in those companies.

The interception of communication is currently regulated by the Regulations of Interception of Communications and Provision of Communication Related Information Act 70 of 2002.

“Direct communication”

Means an:

  1. Oral communication, other than an indirect communication, between two or more persons which occurs in the immediate presence of all the persons participating in that communication; or

  2. Utterance by a person who is participating in an indirect communication, if the utterance is audible to another person who, at the time that the indirect communication occurs, is in the immediate presence of the person participating in the indirect communication.

 

“Indirect communication”

Means the transfer of information, including a message or any part of a message, whether:

1) In the form of:

  1. Speech, music or other sounds;

  2. Data;

  3. Text;

  4. Visual images, whether animated or not;

  5. Signals; or

  6. Radio frequency spectrum; or

2) In any other form or in any combination of forms, that is transmitted in whole or in part by means of a postal service or a telecommunication system.

 

“Intercept”

Means the aural or other acquisition of the contents of any communication through the use of any means, including an interception device, so as to make some or all of the contents of a communication available to a person other than the sender or recipient or intended recipient of that communication, and includes the:

  1. Monitoring of any such communication by means of a monitoring device.

  2. Viewing, examination or inspection of the contents of any indirect communication; and

  3. Diversion of any indirect communication from its intended destination to any other destination, and: interception” has a corresponding meaning.

 

“Interception device”

Means any electronic, mechanical, or other instrument, device, equipment or apparatus which is used or can be used, whether by itself or in combination with any other instrument, device, equipment or apparatus, to intercept any communication, but does not include:

1) Any instrument, device, equipment or apparatus, or any component thereof:

  1. Furnished to the customer by a telecommunication service provider in the ordinary course of their business and being used by the customer in the ordinary course of their business;

  2. Furnished by such customer for connection to the facilities of such telecommunication service and used in the ordinary course of their business; or

  3. Being used by a telecommunication service provider in the ordinary course of their business; or

2) A hearing aid or similar device being used to correct below normal hearing to not better than normal, and a reference to an “interception device” includes, where applicable, a reference to a “monitoring device”.

 

In terms of section 4, any person other than a law enforcement officer, may intercept any communication if they are a party to the communication, unless such communication is interpreted by such person for purposes of committing an offence. Furthermore, any person, other than a law enforcement office, may intercept any communication if one of the parties to the communication has given prior consent in writing to such interception, unless such communication is intercepted for purposes of committing an offence.

Any person who intentionally intercepts or attempts to do so, or authorises or procures any other person to intercept, is guilty of an offence.

Does the employer have the right of access to or to confiscate the employee’s computer and or phone to intercept and read employees’ email?

From section 2 mentioned above it appears that the section may include email within the scope of the prohibition. An employer is prohibited from intercepting email or other electronic messages at any stage during its transmission.

It should however be noted that the Act does allow interception under certain circumstance. An interception order can be obtained to authorise the interception of communications, or the employee (or any one of the parties involved in the communication) can consent to the interception.

Employees granted the privilege of access to the internet must adhere to strict guidelines with regards to the appropriate use of this resource. Users who violate the provisions are subjected to disciplinary action in terms of the disciplinary procedure. The internet access shall not be used for any illegal or unlawful purposes i.e. abuse that involved criminal offences i.e. fraud, threats, pornography, etc. Users must take note that access to the internet is strictly limited to activities in direct relation to official business. The abuse of company resources for personal use or benefits will not be tolerated.

The company’s electronic communications and security policy must set out specific guidelines with regards to:

  • How to manage the risk of usage and to guide users as to what is acceptable.

  • The use of company owned or sponsored personal computers, laptops, phones, fax machines, notebooks, printers, related hardware, company software and the internet infrastructure of the company.

  • Access to and disclosure of electronic mail messages sent or received by employees; copyright, storing and printing of information; confidential information.

EOHCB Contact Details
Web: www.eohcb.co.za  |  YouTube: www.youtube.com/eohcbsa/
Facebook: www.facebook.com/eohcb  |  Twitter: twitter.com/eohcbsa
Instagram: www.instagram.com/eohcbsa

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