Several South African companies have implemented an email monitoring policy in their employment contracts. This policy often covers private and professional use of email, but people often wonder how intrusive it should be, says Roy Bregman, director at Bregman Moodley Attorneys.
“Our Constitution respects a person’s right to privacy. The Personal Information Protection Act (POPIA) further strengthens personal data protection rights,” he said. “An employer has the right to expect that employees will not use their email to violate company policies, use inappropriate language, breach confidentiality, or run their own business during working hours. .”
Bregman added that employment contracts typically contain clauses dealing with monitoring and interception of emails.
These clauses generally provide that employees should not expect confidentiality when sending, receiving, downloading, downloading, printing or transmitting e-mails. And that employees should use email only for bona fide business purposes.
In terms of POPIA, an employer who processes an employee’s personal information must:
- Do so in a reasonable manner and without negatively impacting their rights as data subjects.
- Do so with the informed, express and voluntary consent of the person concerned.
- Explain the purpose of such surveillance interception, to enable employees to perform their duties and to assist the employer in meeting its legal, commercial, administrative and managerial obligations.
WhatsApp and privacy
These policies may also include other forms of communication, including messaging services such as WhatsApp and Slack.
An employer is generally liable for its employee’s conduct when employees act within the scope and scope of their employment, said Karl Blom, senior partner at law firm Webber.
For this reason, if an employee uses WhatsApp to conduct their employer’s activities, the employer must ensure that those activities are POPIA-compliant, he said.
He added that several provisions may apply under the POPIA, including requirements for:
- Transfer of data to third parties outside of South Africa;
- Retention of personal information;
- The security of personal information;
- The purpose for which the personal information is used.
“If an employer uses WhatsApp, they should treat these messages like they treat any other technology – like email, VOIP, regular mail, etc.”
Employers should also be aware of any contractual privacy provisions that may apply to them – including those that may restrict its use of certain technologies, such as WhatsApp, he said.
“Finally, it is important to remember that WhatsApp and other messaging tools are operated by third parties, so employers should always be aware of any regulatory requirements that may restrict how they provide data to third parties. .
“For example, employers in the legal, education, medical or insurance sectors should be aware of the specific requirements that apply to these sectors.”
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