The development of new technologies such as Internet and cellphones has made imperative a legislative overhaul in the area of interception of communications. Thus, the Regulation of Interception of Communications and Provision of Communication-related Information Act no 70 of 2002 (RICA) which regulates the interception of communications and monitoring of signals and radio spectrum in South Africa has been enacted. But its promulgation has been surrounded with a hot debate in connection with the implications of the changes brought by it and their impact on, among others, the right to privacy, employers-employees relations, businesses and customers and civil or criminal proceedings.
The RICA, first and foremost reminds the right to privacy of communications, a fundamental right that implies not to have one’s communications privacy infringed by stating the prohibition of the interception of communications, then as no right is absolute in itself sets out exceptions and conditions under which interception can be made. According to the RICA, communications can be intercepted by a party to communication, with consent of a party to communication, in connection with carrying on of business, to prevent serious bodily harm, for the purposes of determining location in case of emergency. Nonetheless, to restrict the invasion of privacy, the RICA requires the interception to be authorised by an interception direction issued by a designated judge at the request of authorised persons. The lawmaker in providing for the judicial oversight and the limitation of interception of communications guarantees a balance between rights to privacy and to security.
Another sector on which the RICA impacts significantly is the employers-employees relation. It protects the employee from the interception of his or her communications by the employer. This one may intercept the employee’s communications only if it is related to the business and in the course of its transmission over a telecommunications system. In other cases, the employer needs to obtain written consent of employees in order to intercept. This provision may lead to abuses from employees. Indeed knowing the inability of the employer to monitor their communications and to punish them, they may misuse the communications tools. Therefore, the employer would need to set a formal company policy on the monitoring of all communications, including e-mail, phone and mail which must be legally sound and reasonable to balance the interest of both parties.
In relation to businesses, the RICA entails great financial implications on telecommunication service providers, which must provide a telecommunication service with the capability to be intercepted and to store communication-related information at their own cost; unlike the UK, where the government is obliged to pay a fair contribution to cover the costs. That is especially true for Internet service providers and cellphone operators who would need to invest in expensive technology to make the interception of e-mails and cellphone calls possible. In a nutshell, the Act may give rise to great expenses for the telecommunication service providers, as well as great losses in case of failing to comply with the provisions, given its heavy penalties. Besides the onus put on cellphone operators to collect customers details, customers have also some duties, among others, to inform the service provider when passing their phone or SIM-card with all information related to the new owner and report any loss, theft or destruction of cellular phone or SIM-card. This provision has the advantage of giving a sense of responsibility to the customer in order to stem the growing crime rate in this area.
The last sector on which the RICA has an important impact is the judicial field.. Indeed, as Canada, Israel, New-York State but unlike UK, it recognizes the admissibility of information obtained by means of interception as evidence in civil and criminal proceedings in South Africa. This will probably help to solve crimes as telecommunication equipment is being put to criminal uses. Nevertheless, this act has a shortcoming here in that it is silent as to when intercepted communication will not be admissible in a court of law.
At the end of the day, the enactment of the RICA has brought changes that are more likely to increase the protection of the right to privacy in crime investigation and intelligence gathering, the rights of the employee, to facilitate the combat against criminality on one hand, and on the other hand, to affect greatly businesses on financial point and restrict employers power towards employees.