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How does the POPI Act, The Constitution or RICA impact staff monitoring solutions?

We have been in an environment where many of us are working from home for such a short time that it is impossible to have true statistics estimating the number of people who have staff monitoring software installed on computers, however we certainly have enough people to question the legality and possible consequences.

The Constitution – The right of privancy for every individual is extremely clear in the Constitution of South Africa, 1996. That being said, certain boundaries are also extremely evident. Im going to explore some of these in a little more detail.

POPI – In late 2013, when the Popi (Protection of Personal Information) Act was introduced, the guidelines have been further detailed. Employees can expect any information legitimately or incidentally obtained within the business, such as medical records or next of kin remain protected within both the bounds of POPI and the constitution.

RICA – Then we have the communication-related Information Act of 2002 (RICA), which in the simplest terms and in summary means that communications such as emails cannot be read except by the intended recipient, or with the written consent of the recipient, or by the employer when the communication relates to the business concerned.

Digital Information – To be clear… your employer can monitor or intercept your electronic communications without infringing your right to privacy if you have granted written consent, such as from your employment contract.

Security Cameras and CCTV – Security cameras in public places such as an office is perfectly acceptable, whilst a private area such as a bathroom is considered a violation of rights. It is essential that employees are notified about the intended use.

So how does this relate to monitoring software on computers? If your objective with staff monitoring is merely to assure productivity within the workplace, it seems pertinent to point out that software that simply analyzes the amount of time in any given website or program should suffice to ensure that your staff are working predominantly instead of playing.

In the formal workplace, any policies regarding staff monitoring should be regulated in a formal document so that all parties are aware and agree on the policy in place. As long as the software doesn’t capture any personal data like passwords and banking details, and it is merely used to indicate which programs or sites are being accessed and only track the employee during working hours, there should be no infringement on rights.

  • Michelle Coetzee

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