As a business tool, a company`s e-mail, Internet and computer system is not private, says Joe Mothibi, director at law firm Deneys Reitz. However, the need to monitor communications must be balanced against privacy rights.
Mothibi says in a paper presented at the recent Deneys Reitz Labour Law Seminar in Johannesburg that the constitutional right to privacy is not absolute, and even common law recognises that the right can be limited in certain instances, including in the workplace.
In certain circumstances, an employer`s access to an employee`s private information would clearly be in breach of the right to privacy, but there are also certain interests an employer would be entitled to protect, and to do so would require access to private information.
"In all instances, an employer`s legitimate needs and requirements ought to be balanced against an employee`s right to privacy," he says.
Citing case law, Mothibi says workplace e-mails are a business tool and an employer is accordingly entitled to monitor that such a tool is used for its benefit and is not abused. This is also true for telephones.
"However, an employer must accept that reasonable personal usage of its e-mail and telephones will take place. Such conversations and communications of a private nature may not be accessed by the employer." But obscene or threatening material on a company`s computer system may be accessed and an employee cannot rely on his right to privacy to block access to such information.
"In order to avoid falling foul of the Interception and Monitoring Act of 1992 and its successor in title of 2002, it is best to include in contracts of employment a term that states that the company may access e-mail communications and Internet communications that are made on the company`s Internet/intranet computer system," Mothibi says.
When in doubt, he adds, seek professional advice.
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