Mail blocking loophole sparks mixed response

Johannesburg, 01 Aug 2003

A potential loophole in the Regulation of Interception of Communications and the Provision of Communication-Related Information (RIC) Act that could make blocking corporate e-mails illegal drew a flurry of responses after it was reported on ITWeb.

This initial report quoted Reinhardt Buys, managing partner of Reinhardt Buys Attorneys, as saying the Act allowed for companies to intercept indirect communication (incorporating e-mails) relating to their business. "This clause seems to indicate that only business-related communications may be intercepted," he said.

But other players in the legal community disagree with him. "It is clear from the legislation that the company has a right, subject to further provisions of the RIC Act, to intercept 'any indirect communications`, which is then further clarified by three potential incidents," says Ryk Meiring of the Technology and New Media Law Consultancy. "Of useful insight is the term 'in the course of carrying on of any business`."

It is Meiring`s opinion that this term does not confine the application of this section only to business-related communications, but rather to any e-mail received on a business system.

Written permission

Buys also suggests that obtaining written permission from all employees whose communications are likely to be intercepted is a prudent course of action, and Paul Coelho, a senior associate at Webber Wentzel Bowens agrees with him.

"In order to avoid debates about the scope and application of Section 6, life could be made much easier for employers by applying the provisions of Section 5 of the RIC Act," he says. "This section permits the interception of e-mail where the consent of one of the parties has been obtained in writing to this interception. Therefore, the interception of e-mail addressed to employees by an employer would be lawful if the employer has obtained the employee`s written consent to do so."

But Meiring points out that written consent is by no means necessary. "The RIC Act in Section 6 clearly anticipates a situation where a company does its best effort to obtain written consent, but is unable to do so. Such a company is still entirely entitled to intercept, in accordance with the legislation. Though best practice obviously suggests written consent is ideal, it is by no means necessary."

Coelho cautions that adequate binding policies addressing the use of Internet and e-mail facilities by employees should be put in place to avoid any confusion.