Can a company open an employee’s email whilst he is away on holiday or out of office?

Section 6 of our monitoring law, the Regulation of Interception of Communications & Provision of Communication-Related Information Act of 2002 (RICA) allows companies to monitor and intercept email provided that 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. “Business” has been given a very wide definition.

The types of activities covered here would be any business transaction, anything that relates in any way to the company’s business, or any activity that takes place in some or other way in the course of carrying on business. This would include those situations where the company monitors communications to check whether they:

  • involve the business entering into transactions, or
  • relate in another way to the business.

So the company may open e-mails in an absent employee’s inbox if this is necessary to see whether there are business communications that need to be dealt with in the employee’s absence. However, the company must not open e-mails that in their unopened state appear not to relate to the business (for example e-mails that are marked “personal” in the header) unless there are convincing grounds on which to believe they are in fact business related.

These categories cover most business communications but they do not include personal communications by employees unless they relate to the business.

Interception will therefore not be allowed if it is carried out intentionally with a view to gain access to the contents of a personal communication sent to or received by an employee, that does not relate to the business. This does not prevent an interception which is carried out only to gain access to the contents of business communications but which may incidentally and unavoidably involve some access to other personal communications on the system.