When is it legal to record conversations without consent?

The protection of Personal Information Act (POPIA) is looming large on the horizon, and privacy governance is about to become an integral part of the way we do business.

Prior to this, the Regulation and Interception of Communications Act (RICA) was one of main concerns in this regard.

A recent article by Gabriella Keeble of SchoemanLaw Inc addresses the legality of recording conversations without the other person’s knowledge that it is being recorded and poses the question whether it can be used as evidence. The author refers to both the Constitution and the Regulation and Interception of Communications Act (RICA) in the article.

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 Act then lists the following three 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.

But how does this come into play when dealing with employers recording their employees, or vice versa?

At the hand of two court cases, Keeble then discusses the issue of recordings made by both employer and employee.

“By virtue of the communications taking place in the workplace or even on the work resources (telephones or computers), it was argued that there could have been no legitimate expectation of privacy as the communications were being conducted during the business hours when the employee should have been conducting business. Employees are likewise entitled to record the communications with their employers, particularly when dealing with situations such as disciplinary proceedings, by virtue of them being a party to the communications. These recordings are thus admissible as evidence.”

Keeble concludes: “The recordal or interception of communications is a complex scenario to navigate as it is often of a highly sensitive nature. Complying with at least one of the exceptions listed in the RICA Act will ensure your recording is admissible and can be used as evidence.”

Andrea de Jongh, Moonstone’s Privacy Governance specialist adds that employers often include the right to monitor and intercept communication on its assets by means of a clause in the employee’s service contract. This serves a dual purpose of alleviating the onus of proof on the employer and reducing the cost of litigation.

Click here to read the full article published on the SchoemanLaw Inc website.