Many employers are still not aware of the arrival of the new Regulation of Interception of Communications Act (Rica), which came into effect in September 2005.

The full title of this act is the Regulation of Interception of Communications and Provision of Communication-related Information Act, No 70 of 2002.

It replaces the 1992 act, making it even harder for employers to monitor telephonic, e-mail and other communications of employees in the workplace.

Rica is, in certain places, unclear. For example, section 6 appears to allow monitoring of employee communications if these have been made in the course of the carrying out the employer's business.

However, there is no clarity on what "in the course of the employer's business" means. Does it mean that the subject of the email must be business-related?

Or does it mean the email must have been sent during business hours or using the employer's equipment?

Section 2 of Rica clearly outlaws the interception of any communication in the course of its transmission. But it is unclear what is meant by "in the course of its transmission".

Does this imply an employer can wait until after the message has been transmitted and then read it?

This seems unlikely as the provisions of Rica are based on the employee's constitutional right to privacy.

Rica appears to cover telephonic, email and all other communications.

"Intercept" in section 2 means the "acquisition of the contents" of the communication and includes access via listening to, viewing, examining or inspecting the communication.

The only section providing any hope for employers is section 5, giving them the right to intercept employee communications if one of the parties to the communication gives written consent.

However, employers will not find it easy to get this consent from employees.

It seems, however, that once an email is "made public" by the sender, it cannot be seen as private and cannot fall under the scope of Rica.

In the recently reported case of Van Wyk vs Independent Newspapers Gauteng (Contemporary Labour Law November 2005 volume 15 number 4 page 37), an employee was dismissed for sending two emails; one to his boss and one to several other people in the company.

These were found to be malicious and derogatory towards the newspaper's editor.

Both the CCMA and the Labour Court did not see the e-mails as private as they had been sent to people who, as the intended recipients, had the right to read them and to act on them.

The privacy protections of Rica appear to apply mainly to cases where neither the sender nor the recipient wishes the employer to access the content of the communication.

In such cases, the employer's rights to protect its interests are severely curtailed. It is understandable that our lawmakers, in the spirit of the constitutional right to privacy, must protect people from being spied on.

However, what of the employer's right to protect itself from employees who break its rules and endanger its interests?

For example, how is an employer to protect itself from employees who:

Send objectionable material to each other or to parties outside of the workplace?

Use up bandwidth needed for business purposes?

Waste company time surfing the Internet or sending private
emails?

Expose the employer's computers to viruses?

Expose the employer to lawsuits by sending offending or unauthorised emails to employees or third parties?

Incur expenses with hour-long telephone calls to friends?

Employers need to be able to monitor employee usage of their communications systems in order to prevent problems arising from such misconduct.

The best strategy employers can use with any safety is to get written permission from all employees to monitor their email or other communications.

Employers should also draw up clear policies prohibiting the abuse of communication systems and the employer's rights to protect their interests.

Obtaining employees' permission should be done in consultation with a labour law expert.