Several South African companies have established an email monitoring policy in their employment contracts. This policy often covers both private and business use of emails, but there are often questions about how intrusive it should be.
Our Constitution respects a person’s right to privacy. The Protection of Personal Information Act (POPIA) further entrenches personal data protection rights. An employer is entitled to expect that employees will not use their emails to violate company policies, use inappropriate language, break confidentiality, or run their own business on company time.
Employment contracts usually contain clauses dealing with the monitoring and interception of emails.
Clauses typically provide that employees should not expect privacy when sending, receiving, downloading, uploading, printing or otherwise transmitting emails. And that employees must use emails for bona fide business purposes only.
These policies can also include other forms of communication – including messaging services such as WhatsApp and Slack.
An employer is typically responsible for the conduct of its employee where the employees are acting within the course and scope of their employment.
For that reason, if an employee is using WhatsApp to conduct the business of their employer, the employer must ensure that these activities are POPIA compliant, he said.
If an employer is making use of WhatsApp, it must treat these messages as it treats any other technology – such as emails, VOIP, regular mail etc.
Employers should also be mindful of any contractual confidentiality provisions that may apply to it – including those that may restrict its use of certain technologies, such as WhatsApp.
Finally, it is important to remember that WhatsApp and other messaging tools are operated by third parties, so employers should always be mindful of any regulatory requirements that may restrict how they provide data to third parties.
For example, employers in the legal, educational, medical or insurance industry should be mindful of the specific requirements that apply in those sectors.