This alert examines the lawfulness of recording conversations/meetings in the workplace, the interplay of certain rights protected under the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002 (RICA) and Protection of Personal Information Act 4 of 2013 (POPIA), the potential civil and criminal consequences of non-compliance with such legislation, and the evolving treatment of electronic recordings as evidence in litigation. 

Must everyone in a meeting or conversation agree to have it recorded?

The recording of meetings and conversations is governed by RICA.

In terms of section 1, to “intercept” communication between parties means:

“[T]he aural or other acquisition of the contents of any communication through the use of any means, including an interception device, so as to make some or all of the contents of a communication available to a person other than the sender or recipient or intended recipient of that communication, and includes the – (a) monitoring of any such communication by means of a monitoring device; (b) viewing, examination or inspection of the contents of any indirect communication; and (c) diversion of any indirect communication from its intended destination to any other destination.”

“Interception device” is defined to mean any electronic, mechanical or other instrument, device, equipment or apparatus which is used or can be used, whether by itself or in combination with any other instrument, device, equipment or apparatus, to intercept any communication.

Sections 4 and 5 of RICA provide, respectively, that any person who is a “party to the communication” may intercept such communication, or if one of the parties to the communication has given prior consent in writing to such interception, unless it is being done for purposes of committing an offence.

A “party to the communication” includes a person who might be listening but not actively participating in the communication.

Therefore, any person who is a party to the communication can record a meeting or conversation without the consent of the other parties to the communication, unless it is being done for purposes of committing an offence. Therefore, not everyone in a meeting or part of a conversation needs to consent to the meeting or conversation being recorded, provided the requirements of section 4 of RICA have been met.

The right to privacy and POPIA

In an instance where a party to the communication records a conversation or meeting without the consent of the other parties (as they are allowed to do in terms of RICA), an issue that naturally arises is the non-consenting participants’ (whether they were given an opportunity to consent or not) right to privacy.

Section 14 of the Constitution entrenches the right to privacy, which includes to not have one’s communications infringed. POPIA creates civil liability for the infringement of the right to privacy.

In respect of the right to privacy, the Constitutional Court has held that:

“Privacy, like other rights, is not absolute. As a person moves into communal relations and activities such as business and social interaction, the scope of personal space shrinks. This diminished personal space does not mean that, once people are involved in social interactions or business, they no longer have a right to privacy. What it means is that the right is attenuated, not obliterated. And the attenuation is more or less, depending on how far and into what one has strayed from the inner sanctum of the home.”

Therefore, in a business setting, it is arguable that, by being at a meeting, one accepts that their right to privacy may be compromised i.e. in terms of their images and words being recorded. Applying the same logic, such limitation of one’s right to privacy may similarly apply to conversations between colleagues, and between employer and employee, in the shared workspace.  

Therefore, in a business meeting context, there might be scope to limit the right to privacy where a recording is made by a participant to the meeting.

Another factor to consider is whether confidentiality has a role to play in respect of recording meetings and distribution of such recordings to third parties. Certain information, such as a company’s proprietary information and trade secrets, are by their very nature confidential. If any confidential information is shared during a meeting which is recorded, and such recording is disclosed to third parties, such conduct may lead to civil liability on the part of the disclosing party, but may not constitute non-compliance with legislation, unless it also constitutes non-compliance with POPIA.

Consequences of non-compliance with RICA

Section 49(1) of RICA provides that any person who intentionally intercepts or attempts to intercept, or authorises or procures any other person to intercept or attempt to intercept any communication in the course of its occurrence or transmission, is guilty of an offence. Subsection (2), however, provides that subsection (1) does not apply to the interception of a communication as contemplated in, inter alia, sections 4 and 5.

Section 51(1)(b)(i) provides, inter alia, that a person who is convicted of an offence referred to in section 49(1) is liable to a fine not exceeding R2 million or to imprisonment for a period not exceeding 10 years.

Therefore, if interception of communication falls outside the scope of sections 4 and 5 of RICA, such conduct is an offence under RICA and punishable by fine or imprisonment. Therefore, the “bugging” (i.e. recording of conversations by persons not a party to such communication, as defined) of offices or meeting rooms is likely to fall outside the ambit of section 4 (and of course section 5, if no written consent was provided prior to such interception), and accordingly is likely to be prohibited by RICA, be unlawful and constitute an offence in terms of RICA.

The admissibility of intercepted communications

In the current legal landscape, there is some uncertainty as to whether audio and video recordings constitute real or documentary evidence. Real evidence is defined as an object which is itself evidence (such as a weapon, or the appearance of a witness in the witness box). Real evidence usually owes its efficacy and relevance to a witness who explains it.

Documentary evidence, on the other hand, is information recorded in some form, traditionally on paper, but now also electronically. There is no single way to define a “document”, although some case law has defined it as “any written thing capable of being evidence”. The Electronic Communications and Transactions Act 25 of 2002 (ECTA) recognises that information is often created and stored digitally, and has accommodated such developments in technology by creating a new type of evidence, namely a “data message” to cover electronic records such as stored files and recordings.

Our courts have generally leaned toward treating such electronic material as documentary evidence, on the basis that digital information can be edited or manipulated. The basic rules governing the admissibility of a document generally are that the original document must be produced and the document must be authenticated. In other words, a witness must explain where the document came from, how it was created and that it has not been tampered with. The ECTA also makes it clear that electronic evidence cannot be excluded simply because it is digital or because the original device is not produced, provided it is the best evidence reasonably available.

A further issue is whether electronic records constitute hearsay evidence. Hearsay evidence is evidence that relies on someone else’s credibility rather than the person presenting it. On this issue, our courts have taken a practical approach: if the evidence depends on what a person said or recorded, then the normal hearsay rules will apply. If the evidence is generated by a computer system itself, it may be admissible (i.e. not hearsay evidence), and the court will attribute the relevance and weight to be placed on such evidence having due regard to other evidentiary rules.

Key takeaways

Lawfulness of recording conversations and meetings: A person who is a “party to a communication” may lawfully record a meeting or conversation without the consent of the other participants, provided it is not done for an unlawful purpose (as permitted under sections 4 and 5 of RICA). A “party to the communication” is broadly defined and can include someone who is listening but not actively participating. Secretly recording a conversation to which you are not a party, and without prior written consent, generally constitutes unlawful interception and an offence under RICA.

The right to privacy is not absolute, but it is not irrelevant: Even where recording is lawful under RICA, privacy rights remain relevant. The constitutional right to privacy is not absolute and is attenuated in business and social contexts. In workplace and meeting settings, there may be a reduced expectation of privacy, potentially justifying participant-made recordings. POPIA can give rise to civil liability if a lawful recording nevertheless infringes privacy rights through improper processing or disclosure of personal information.

Confidentiality is distinct from legality: A participant may still lawfully record a meeting even if it is confidential. However, distributing recordings that contain confidential or proprietary information can lead to civil claims (interdict and damages).

Admissibility of recordings engage the ordinary hearsay rules: Meeting recordings are not automatically admissible but, if admissible, may have to withstand the scrutiny of being declared hearsay evidence by a court. Additionally, over and above relevance to the matter, the weight to be given to such evidence will also have to be assessed by the court considering the matter.