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Legal loophole could make blocking e-mail illegal

By Georgina Guedes, Contributor
Johannesburg, 16 Jul 2003

An IT law specialist has warned that in terms of the Regulation of Interception of Communications and the Provision of Communication-Related Information (RIC) Act, a company may only intercept an e-mail if the content is relevant to its business. This could present a problem to companies using e-mail blockers to limit employees` access to questionable content.

E-mail blocking falls under the auspices of the RIC Act, as it is classified as an "indirect communication". The Act specifies that anyone may in the course of carrying on business, intercept any indirect communication relating to that business.

"This clause seems to indicate that only business-related communications may be intercepted," says Reinhardt Buys, managing partner of Reinhardt Buys Attorneys. "Furthermore, the clause comes with the proviso that communications may only be intercepted without consent 'in the course of its transmission over a telecommunications system`. A 'telecommunications system` is defined in terms of the Telecommunications Act of 1996 and a server operated by a private business is probably not part of this."

Time of arrival

E-mail blockers also present a problem if they intercept an e-mail that appeared to the sender to have been received by the recipient, says Buys. An e-mail is considered received when it enters the IT system of the recipient`s business, posing a problem if it is blocked and the information was time-sensitive.

To avoid possible exposure to a R2 million fine or imprisonment, Buys advises companies to ensure their e-mail blockers are above board when the Act comes into operation.

He suggests that companies obtain written consent from all employees that their e-mails may be intercepted, establish a communications policy to govern the interception of e-mail and Internet access, post a legal notice on all outgoing mails to cover the possible blocking of incoming mails, and agree with third-parties on at what point an e-mail will be regarded as received.

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