Spying on your staff – SA law

Written by T.Jackson

Disclaimer: The following is not legal advice, it is our opinion, formed over many years in the electronic surveillance business and having consulted various legal professionals for advice along the way.

Spying on your staff - what South African law says

In South Africa we have legislation dealing specifically with the interception and monitoring of the communications of others. Communications includes face-to-face conversations, meetings, telephone calls, emails, snail mail, two-way radio communication etc.

In the context of electronic surveillance the spirit of the law is simply this: If you’re going to learn something you would otherwise not have known, then it’s probably illegal, otherwise it’s okay.

The law says that you may intercept and monitor any communication to which you are a party or with the consent of any person who is a party to the communication or where you have previously informed one of the parties to the communication.

Furthermore, there is provision in the law for the surveillance of staff and the interception of their communication in the workplace for purposes of protecting the interests of the company.

To clarify this it is useful to cite a few real world examples:

  1. You’re one of several people invited to attend a meeting and you secretly record the meeting without the knowledge of anyone else present. This is legal because the recording won’t teach you anything you didn’t already know, given that you were present at the meeting – no one at the meeting would have said anything they didn’t want you to know about.
  2. You hide a recording device in a meeting room prior to a meeting that you are not attending and retrieve it afterwards. That would be illegal unless you had done it with the consent of someone attending the meeting.
  3. You have a recording device connected to your own telephone and you record your calls without disclosing this to the people you talk to on the phone. This is perfectly legal because you are party to the conversations and learn nothing new from the recordings.
  4. You attach a recording device to someone else’s phone and later listen to the recordings, that would be illegal unless you had obtained their permission or had informed them previously that their calls may be recorded.
  5. You monitor the telephone calls of one of your employees to gather proof of them divulging proprietary company information to a competitor. This would be legal on the grounds that it was necessary to protect the company.

In summary then, there is broad scope for the legal use of electronic surveillance in the business environment, especially when it comes to protecting the interests of the business.

Any covert electronic surveillance that you choose to conduct should be carried out by a specialist who has suitable skill and experience to ensure that it’s done properly and with minimal chance of being detected.

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