Ever thought of recording a conversation to protect yourself, or to expose someone else’s alleged wrongdoing? Perhaps you’ve dealt with dishonest service providers, or maybe you’ve got a gut feeling that your significant other is cheating – any evidence that supports your case is good evidence, right?. But how far can you go before your surveillance actions can be deemed illegal?
A few years back news erupted about a cellphone hacking scanadal involving a Pretoria-based divorce attorney, Selwyn Shapiro. According to reports, Shapiro allegedly revealed sensitive information about a male client’s wife and her friend. The information was obtained by Shapiro’s client who hacked into his then wife’s Blackberry – an action for which he was later criminally charged.
Therein lies the first part of the answer: in good ole South Africa it is illegal for any civilian to record conversations to which he or she is not a party. In short, this means spying on someone by hacking their phone or computer could land you in hot water – even if it’s the other party who may be doing something wrong.
But that’s about as restrictive as current legislation gets.
The only real requirement to legally record a conversation is that you have to be a part of the conversation, or be in such proximity to the conversation so that the participants can be said to be aware of your presence. You don’t need any permission.
So what about communication to which you aren’t necessarily party?
Well, a few caveats apply. If you are recording communication to which you are not party, it will have to be proven that those party to the communication were indeed aware of your presence. And this can be a sticky issue since it’s hard to prove an awareness of something.
The sensitivity (another relative concept) of the information exchanged during the communication also plays a big part in establishing whether proximity can be argued. The more sensitive the information, the less likely it is that the individuals having the conversation would like it to be recorded by a third party.
In other cases, it’s pretty clear cut. The then wife of Shaprio’s male client grew suspicious of her husband after he beat (context: a race) her in filing for divorce. According to reports she had confidentially instructed her legal representative to issue summons to begin divorce proceedings. The shock came as a divorce summons was delivered directly to her attorney’s office from her husband’s attorney. She had never disclosed the identity of her attorney to her husband.
Electronic Communication (Video recordings, emails etc.)
Where electronic communication is concerned much the same applies. If you are in any way part of the communication (for example, being included in an email), or have the written consent of one of the parties to the communication, then keeping a record of that conversation can be deemed legal.
However, here too a number of caveats exist.
Indirect communication, which can be classified as any type of communication which isn’t face-to-face, covers a wide spectrum of media including data, moving images, other types of recordings, and so on.
Legally recording or keeping record of such indirect communication can make matters infinitely more complicated since there is no real way of making such recordings unless you are party to the communication, or use illegal means to obtain the communication, as was the case with Shapiro’s male client.
So, unless someone party to the communication (with the necessary authority and jurisdiction) provided you with explicit consent or a copy of the communication, it’s likely that recording such information would be illegal. But even if you receive consent, a matter of ownership can also be raised (for example, who owns the content of an email sent via a company address, and who has the right to grant access to that content?).
In conclusion, the simple rule of thumb is this: record your own conversations as much as you want, but give others their privacy. Otherwise you may get saddled with a legal dilemma of your own where you or your legal representative prove possession of information you really shouldn’t have.