There is direct link between the concepts of monitoring and privacy.
The Constitution of the Republic of South Africa of 1996 (“the Constitution”) recognises the right to privacy in South Africa as a fundamental right in section 14. It includes the right not to have the privacy of one’s communications infringed. The Constitutional Court has delivered several judgments on the right to privacy insofar as it relates to the possession of indecent or obscene photographs, child pornography, searches and seizures, and the criminalisation of prostitution and gambling.
Based on these judgments of the Constitutional Court, it can be seen that the concept of “privacy” can be divided into separate but related parts. For example,
- “bodily privacy” deals with the protection of one’s physical self against invasive procedures such as genetic tests, drug testing and cavity searches.
- The “privacy of communications” covers the security and privacy of mail, telephones, e-mail and other forms of communication.
- “Information privacy” involves the establishment of rules governing the collection and handling of personal data such as credit information and medical records. This is also known as “data protection” (the issue of data privacy is currently being dealt with by the South African Law Commission which has published the Protection of Personal Information Bill (which is not yet law).
Privacy in the workplace (so-called “workplace” privacy) would fall under the category of privacy of communications. At very least, most employers make some checks on the quantity and quality of work produced by their employees. Most employees generally will expect this. Many employers carry out monitoring to safeguard their employees (e.g. that those in hazardous environments are not being put at risk through the adoption of unsafe working practices) as well as to protect their own interests or those of their customers.
Issues of privacy in the workplace therefore entail two inherently conflicting interests:
- In the first instance there are the legitimate business interests and information assets of the employer which require protection and can fairly be said to justify the monitoring of its information systems.
- Secondly, there is the simultaneously competing interest of an employees’ reasonable expectation of privacy regarding communications they make in the workplace. It may intrude into their private lives, undermine respect for their correspondence or interfere with the relationship of mutual trust and confidence that should exist between the two parties.
It is not always easy to draw a distinction between business and private information and these 2 conflicting interests need to be balanced.
Section 6 of RICA which deals with monitoring in the ordinary course of business is an example of the ‘balancing act’ that the Constitution requires where rights conflict.
Prior to RICA, the judicial determination of which interest should be given paramount consideration was a vexed one. There was legal uncertainty as to whether the situation was regulated by the common law or the Constitution or both.
Right to privacy not absolute
This right to privacy is not an absolute right and can be limited by invoking the general “limitation clause” in section 36 of the Constitution which provides that inroads into the rights as contained in the Bill of Rights can be made by the enactment of other laws under certain circumstances.
RICA is an example of a law permitted under the “limitations clause”. Therefore, the right to privacy under section 14 is not an absolute right and has been limited by RICA. The effect of this is that employers are entitled to monitor and intercept electronic communications in certain circumstances, although such actions will amount to an infringement of the employees’ right to privacy.