The document discusses the Interception Act and Privacy Act in South Africa. The Interception Act regulates the monitoring of communications and requires a court order. It allows for interception without informing the person under surveillance. The Privacy Act seeks to protect personal information and regulate its flow across borders. It counterbalances the Interception Act by promoting privacy protections for South Africans.

1. Interception Act versus Privacy Act
Dr. Varun Kumar
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2. Outlines
1 The Interception Act
2 The Privacy Act
Activity
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3. The Interception Act: South Africa
⇒ The interception act came into full effect in September 2005.
⇒ Ref: http://www.justice.gov.za/legislation/acts/2002-070.pdf
⇒ RICA: Regulation of Interception of Communications Act.
⇒ Provision of Communication related Information Act.
⇒ RICA seeks to regulate
The interaction of certain communications
The monitoring of certain signals (radio frequency spectrum)
The provision of certain communication-related information
⇒ Steps for monitoring the communication
Law enforcement must be in possession of information or evident
⇒ Electronic communications are being used in the commission of the
crime.
Approach the court and request an ”interception direction”.
⇒ The sitting judge will then decide on the merit of the evident present
and will grant or refuse this directive.
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4. Continued–
Once the interception direction is obtained,
⇒ It can then be served to the relevant service provider.
⇒ Forward all surveillance information to the law enforcement agency.
⇒ The person under surveillance needs not be informed.
RICA provides that all forms of monitoring and interception.
There are several exceptions on the prohibition on intercepting
communications.
⇒ Three rules for apply to monitoring in the workplace:
(i) Party to a communication:
⇒ Section 4 of the RICA allows a party to a communication to monitor
and intercept the communication if he/she is a party to the
communication.
⇒ The participants in a meeting consent to the meeting being recorded.
⇒ This exception also applies where the interceptor is acting with the
consent of one of the parties to the communication.
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5. Continued–
(ii) Written Consent:
⇒ Section 5 allows for interception of any communication under any
circumstances
⇒ No special motivation or reason is required for it.
⇒ The person whose communication is being intercepted has consented
to it in writing prior to such interception.
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6. Continued–
(iii) Business Purpose Exception:
⇒ Section 6 contains a so-called business purpose exception which
involves the interception of indirect communications in connection with
the carrying on of business.
⇒ Section 6 authorizes any person to intercept indirect communications
in the course of carrying out their business by means of which a
transaction is concluded in the course of that business.
⇒ Relates to that business or which otherwise takes place in the course of
the carrying on of that business, in the course of its transmission over a
telecommunication system.
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7. The Privacy Act
⇒ The protection of personal information Act is seen by some as a
counterbalance to the Interception Act above.
⇒ Ref: http://www.gov.za/sites/www.gov.za/files/37067 26-
11 Act4of2013ProtectionOfPersonalInfor correct.pdf
⇒ The act seeks to promote the protection of personal information of
South Africans processed by public and private bodies.
⇒ It also seeks to provide for the rights of persons regarding unsolicited
electronic communications and automated decision making.
⇒ It also seeks to regulate the flow of personal information across the
borders of the Republic.
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8. Activity
Activity: A
⇒ It is likely that by the time you are reading this set of notes that
another draft of the proposed act has been released.
⇒ The media might also be covering it in more detail.
⇒ Try and get hold of the most recent draft or some analysis of it in the
media.
Q How has it changed?
Activity B
Q Discuss if and how the interception and privacy counterbalance one
another. Do you have concerns about either of the acts?
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