South Africa’s Constitution guarantees every individual’s basic human rights. These rights are afforded to people simply because they are human beings, regardless of where they live in the world or their position in society. The right to privacy is one of the human rights recognized by our Constitution and entitles us to protect our rights.
There are times when one person’s rights may infringe upon the rights of another person. The South African Bill of Rights says it is acceptable in certain cases to limit rights, if it is reasonable to limit them in the particular situation, and if it is justifiable in an open and democratic society based on equality and freedom. The workplace is a good example of an area where the individual employee’s right to privacy can come into conflict with the employer’s right to control the working environment of his business.
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, as well as monitoring of an employee’s activities while using the computer, like browsing the internet. In a court case in 1999, the court said: “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 may protect its business environment by monitoring emails and phone calls, as long as the employer can prove that there is a business interest and that the equipment that is monitored, belongs to the employer. This will be limited to information relating to the work environment and not the employee’s personal information.
In a law prohibiting the interception of information, 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.” There are exceptions to the rule, provided that:
- the interception must be with the consent of the chief executive officer or equivalent of the juristic person, or any person duly authorised by such person;
- employers must either have made all reasonable efforts to inform in advance of the fact that interceptions may take place, or the interception must take place with the consent of the person who uses the telecommunication system;
- the system must be provided for use in connection with that business; and
- such interceptions must be carried out for specific purposes, namely, to monitor or keep a record of communications where this is done to establish the existence of certain facts or to investigate the unauthorised use of the system concerned or to secure its effective operation.
Employers are thus allowed to check emails and communications which are made from business equipment by employees, if there is good reason to do so. Employees should be aware that they do not enjoy an 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 ideally be notified of this fact. Employers may consider establishing a firm internet policy containing written employee consent.
Gerhard Truter (B.Com LLB) is an attorney of Barnard Incorporated, Centurion. Article published through facilitation of Legalex (Pty) Ltd, a legal cost insurance administrator and legal services provider.