“These exceptions include if you are a party to the disclosure, if you have the written consent of one of the parties to the disclosure, or if the document relates to a business (in which case more specific requirements apply).” “This includes recording conversations on the phone or even someone talking in a room full of people without their consent.” In South Africa, records of communications are governed by the Communications Interception and Provision of Communications Information Regulation Act 2002 (known as the FADN) and, for the purposes of that Act, no one can generally record a conversation without their consent. The FADN law doesn`t really differentiate between video and audio recordings, Hoole noted in an interview with BusinessTech. “This, of course, would mean that if evidence (such as audio recordings) is obtained in a way that violates an employee`s right to privacy, it would not be admissible. However, Article 35(5) of the Constitution qualifies this to essentially provide that such evidence is admissible when it is in the interests of justice,” Bregman said. In addition, based on the communication that took place in the workplace or even on work equipment (telephones or computers), it was argued that there could be no legitimate expectation of privacy, since the communication was made during business hours when the employee should have been doing business. Employees also have the right to record communications with their employers, especially in situations such as disciplinary proceedings, as they are involved in the communication itself. These recordings are therefore admissible in evidence. Protea Technology Ltd v. Wainer4 follows Bernstein v. Bester and is relevant since the court had to rule on the admissibility of the transcripts of recordings made by the employee, the first defendant. The Court has also had to deal with the right to privacy as well as the rights of workers when it comes to intercepting and intercepting communications.
It was determined that there must be a legitimate expectation of privacy on the part of the employee, which was not evident in this case, as he was aware of the recorded telephone conversations. The Court also held that, with respect to the right to privacy under Article 14, this right must be weighed against the relevance of the evidence at the discretion of the court in deciding on the admission of evidence. In S v. Kidson, the police found themselves complicit in a murder using a voice-activated tape recorder. This recorder was used to record a conversation with the accused. The conversation contained many details regarding the murder that took place, and the court then had to rule on the admissibility of the recordings. Many of us find ourselves in precarious situations where we find it necessary to record conversations, mainly to be used as evidence against the other person for various reasons. This can be in the family environment or even in the workplace where you have recorded certain scenarios such as disciplinary proceedings. But are these recordings legal without the other person knowing they are being recorded? And can this be used as evidence at a later date? “But always remember that if you are not involved in the conversation at all, it is illegal to record it,” he concluded. The condition is that the person making the recording must be a party to the conversation at that time.
The Interception of Communications and Provision of Communications Information Act 2002 (FADN Act) provides that any person, other than a law enforcement officer, may intercept any communication if he is involved in the communication, unless such communications are intercepted by that person for the purpose of committing an offence. This means that while our privacy rights are constitutionally protected, it is not illegal for a person to record a conversation that they are involved in that conversation. The law provides for certain exceptions to the above rule. For the purposes of section 4 of the Act, you may record a conversation without consent if: This raises the question of when can you legally film and audibly record someone in South Africa? Following the recent confusion surrounding the case, Cape Town-based Michalsons law firm has collapsed exactly when you can and cannot accept someone in South Africa without their consent. “This type of recording can be damaging, such as when Springboks rugby player Luke Watson was included, making statements about the Springboks jersey and the `Dutch` who referee the match.” The personal data relate to an identifiable living natural person and, where applicable, an identifiable existing legal person. Therefore, the recording of personal data without the consent of the other party is prohibited, even if the person recording the conversation is involved in the conversation. The implementation of POPIA is expected to begin on July 1, 2021. In a recent case, a Sandton IT company used an employer`s recorded telephone conversations in a lawsuit. The Tribunal found that this was permissible because the discussions took place on the employer`s premises and during office hours. So there is “no legitimate expectation of privacy,” Bregman says. Which should also be included and allowed to record life-threatening situations and when criminals try to lure licensed planners and real estate agents, etc.
with nefarious intentions. The media is full of these eternal crimes. Criminals exploit a young and dysfunctional police system. In one employment case, an employee wanted certain records of telephone conversations recorded by the employer using a monitoring device to be declared inadmissible. The Tribunal found that, in the course of his employment, the monitoring device used by the employer was permissible and that the employer had the right to use these recordings of these conversations. Do you know for sure that a conversation you had with someone was not recorded? As technology takes over our daily lives, it`s fair to say that our phone conversations or even our general conversations can easily be recorded by others, often without our knowledge. “The more sensitive the content, the less likely it is that all participants will allow the conversation to be recorded. Some people would just say certain things at a certain time and to certain people. “Many customers will feel betrayed when they find out you`ve recorded their conversations without them knowing. They may not have a legal claim against you, but it could still hurt your company`s image. The exception to the rules in direct and indirect communication is when the recording is made to commit a crime – such as a conversation between people about a plan to rob a bank.
This record can be used as evidence without authorization to prosecute a person accused of committing a crime. A recent article by Gabriella Keeble of SchoemanLaw Inc. examines the legality of recording conversations without the other person knowing they are being recorded, and wonders if this can be used as evidence. The author refers in the article to both the Constitution and the Law on Regulation and Interception of Communications (RICA). Regarding the recent Spur incident, Hoole noted that even though the law was somewhat vague on the subject, where those arguing were not necessarily informed that they were being filmed, it would likely still be a case of direct communication (since you are in audible presence), in which case you are legally allowed to film. The recording or interception of communications is a complex scenario as it is often of a very sensitive nature. By ensuring that you comply with at least one of the exceptions listed in the FADN Act, you will ensure that your registration is admissible and can be used as evidence in your case. In another case, Harvey v. Niland and others, a man was accused of hacking into his former business partner`s Facebook account, where he was able to access the messages of some ex-partners on Facebook. This act was clearly both criminal and an invasion of privacy. However, the Court stated that, in accordance with the common law principle, all relevant evidence that is not inadmissible (because any exclusionary rule) is considered admissible in a civil court, regardless of how it was obtained. The court ruled that privacy rights are not absolute and that it has the discretion to admit certain evidence, even if the evidence was obtained illegally.
In a case study, Hoole pointed out that a Skype conference call would fall under indirect communication because it takes place via an online telecommunications service. Therefore, you must be one of the parties or obtain the consent of one of the parties to record the video.
