Online Legal…

There are many benefits to be gained by managing your emails properly. These are some of them:

• the ability to automatically migrate the emails to other storage media, thereby making the email servers more efficient and users more productive;
• the ability to make the email system serve as an organisational knowledge store, allowing users to mine data for a variety of purposes.

But you also have to comply with all laws that apply to email.  Everyone uses email and therefore you must comply with the laws that apply to email.  That’s it - there is no room for discussion.

Much of what is transmitted through an email system system constitutes a ‘record‘, or a document that must be kept for a minimum period of time that is often established by statutes or regulations.  Where email is a “record” you have to comply with those laws.

You also should consider adhering to applicable rules, codes and standards.  Therefore, you should consider adhering to the rules, codes and standards that apply to email.  You don’t have to comply, but you should consider doing so.

The problem is that it is very difficult to determine what laws, rules, codes and standards apply to email.  For ease of reading, we will refer to the laws, rules, codes and standards as laws from now on.

If you are not aware of the laws and do not have a working understanding of their effect, how can you comply with them?

The purpose of this paper is to make you aware of the laws in South Africa that apply to email so that you can comply with them.

Find out about the laws or regulatory requirements applicable to email

Who is responsible?

Who is responsible for complying with email laws?  Under King III the board is responsible for the company’s compliance with email laws.  The board should ensure that the company implements an effective compliance framework and processes to ensure compliance with email laws.

The benefits of complying with the law

What are the benefits of complying with email laws?  What is in it for you?

• Avoid potential legal sanctions (such as imprisonment or fines).  For example, few people know that if you send out a newsletter that does not give the recipient the option to unsubscribe, you could go to jail for 12 months.
• Avoid financial loss in terms of contract or delict
• Don’t damage your reputation
• Retain key personnel
• Avoid legal difficulties, problems or disputes
• Avoid costly litigation
• Produce all relevant records in the event of litigation
• Your email will be admissible in court and will carry sufficient evidentiary weight
• Provide access to emails to third parties when required to do so by law
• Practice good corporate governance
• Pass audits on email management policies and practices with flying colours

Solution found

Up until now nobody has been able to give a simple, complete, understandable answer in plain English to  the question “What laws apply to email?“.  The reason is because it is difficult answer.  It involves many different areas of the law and it involves intangible concepts.  There is a lot of confusion out there and mis-information - making it even more difficult to see the wood from the trees and establish the correct position.  There is quite a lot of information that relates to other jurisdictions (like the USA), but very little for South Africa.

We:

• state each law,
• state whether you must comply or should consider adhering to the law,
• summarize it in a paragraph,
• give you the applicable sections so that you can go straight to them,
• tell you what the penalty (or consequence) is (whether you are going to go to jail or not) and give you some practical examples,
• point you towards additional relevant guidance in case you want to get a deeper understanding (as opposed to a working understanding).

Topics of email law

To make it easier to follow, we will deal with the laws under the following topics, rather than deal with them one at a time.  One law or regulation may appear under more than one topic.

1. Monitoring email in the workplace
2. Corporate information on email
3. Conclusion of agreements by email
4. Personal information and email
5. Email as evidence
6. Production of an email
7. Retaining and archiving email
8. Critical databases relating to email
9. Consumer Protection and email

Additional topics on email law we will be dealing with shortly include:

1. Unsolicited commercial communications or SPAM
2. Email disclaimers
3. Signing emails
4. Defaming people in emails
5. Discriminating against people in emails
6. Providing access to emails (PAIA Act)
7. Intellectual property in emails and violation of IP rights using email
8. Securing email

Monitoring email in the workplace

Law: The Regulation of Interception of Communications & Provision of Communication-Related Information Act 70 of 2002 (RICA) - View | Guide

Must comply.

What it does: RICA is South Africa’s monitoring law. It allows companies to monitor and intercept email in certain specified circumstances. Companies may monitor and intercept email where

1. employees have consented to it; or
2. it takes place “in the course of the carrying on of any business” at the company and provided that the other requirements of section 6 have been met.

Applicable Sections: Sections 5 and 6

Penalties: See section 51 - imprisonment up to 10 years and fines up to R 2,000,000 for a natural person and R 5 000 000 for a juristic person.

See Michalsons online:

• Complying with RICA
• Opening absent employee email
• Privacy in the workplace - an interview
• Can I read documents on your PC?
• Monitoring of Communications
• Use of a E-mail and the Internet at the Work
• Link between Monitoring and Privacy

Law: Electronic Communications and Transactions Act 25 of 2002 - View | Guide

Must comply.