across the bar

The problem with the "consent" provisions of RICA

by Steve - Posted 26 June 2006

Since the release of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (RICA) many commentators have declared that the best way for companies to avoid hefty fines is to get their employees written consent before intercepting any electronic communications. This approach is short- sighted and should be viewed with caution for the following reasons:

1.For consent to be valid it must be freely given. An employee threatened with dismissal or being passed over for promotion or simply being alienated by his or her employer cannot truly be said to have given their consent freely.

2.Secondly, consent is a unilateral act and can be revoked at any time by the employee.

3. RICA must be interpreted narrowly to give effect to the constitutional right to privacy enjoyed by employees. A blanket consent to interception cannot be given and employers will be required to obtain consent each time that an interception may take place. A logistical nightmare!

4.Section 4 of RICA provides for consent to be given by one of the parties to the communication. What about the other party's privacy rights? Especially where the intercepted communication is received rather than sent by the employee who has given consent. (This section may be challenged at some stage in the future)

Bottom line - consent may be useful in terms of RICA but employers should be aware of its shortcomings.