Recently enacted laws in Zambia have drastically curtailed the rights of employers to monitor employee use of IT systems and even imposed severe criminal sanctions on employers. It is usual for employers in Zambia, and in fact, in various jurisdictions, to monitor the use of the employer’s IT equipment and systems by employees, especially during working hours, including interception of email communication by employees.This may be for various reasons such as:
(a) monitoring employee productivity;
(b) managing HR risks which may arise, for example, in the use of systems and equipment to send obscene or unsavory messages which may be deemed as harassment;
(c) managing criminal risks such as logging on sites that may constitute criminal conduct;
(d) alleviating virus and system corruption risks; and
(e) managing reputational risks to the organization due to the employee’s conduct.
However, employers need to be exercise caution because by monitoring the use of its IT systems, an employer may be contravening the provisions of the Electronic Communications and Transactions Act No 21 of 2005 (the “ECT Act”).
The ECT Act is the principal statute regulating electronic transactions in Zambia. The ECT Act prohibits anyone from using of electronic, mechanical or other devices to intercept communications of electronic communications whether directly or through third parties.
“Access” is defined as the right to use or open the whole or any part of a computer or electronic communication system, or to see, open, use, get or enter information in a computer or electronic communication system, with authorization from the owner or operator. The term “intercept” means accessing or acquiring the contents of a communication through an electronic, mechanical or other device.
The ECT Act is couched in such a wide manner that it does not exclude the employee/employer relationship from its applicability. As such, an employer who intercepts the email of an employee in a work environment runs the risk of breaching the ECT Act. Therefore, the monitoring of emails or internet use of the employees by the employer may be considered to be a form of interception and as such prohibited under the ECT Act.
What happens should the employer attempt to conduct investigations on an employee for possible misconduct or disciplinary proceedings or perhaps, possible criminal investigations? The ECT Act is an impediment to any investigations that the employer may wish to initiate in respect of an employee as consent of the offending employee must be sought. Indeed, this would defeat the purpose of the investigations. Furthermore, the ECT Act does not contain any exceptions in respect of investigations to be conducted by employers. The only exception to the prohibition of interception is for law enforcement agencies and even such law enforcement agencies may only intercept by obtaining an interceptions order from the Court.
The absurdity in relation to the employee/employer relationship is to be found in the penalty for breach of the above provision which prohibits interception. Under the ECT Act, a person who contravenes the prohibition on interception commits an offence and is liable, upon conviction, to imprisonment for a period of twenty-five years. It is difficult to comprehend the circumstances and the justification for the imprisonment of an employer for intercepting an employee’s email communication. If the offending person is a corporation, every person who is a director or concerned with management of the body corporate or knowingly authorised or permitted the act shall be deemed to have committed the same offence for the purposes of the Criminal Procedure Code.
In conclusion, therefore, the ECT Act poses potential problems for the employer in electronic communications and particularly in regulating employees in the work environment. The ECT Act is a fairly recent statute and has not been tested in the Courts of Law in Zambia and as such there are no Court precedents on this subject. It is our opinion that the drafters of the ECT Act drew the Act too widely with little regard to electronic communications in the labour sector, which sector increasingly depends on electronic communications in the modern world.
Accordingly, in order for employers not to fall foul to the provisions of the ECT Act, we suggest that employers obtain prior written consent from employees under which employees give authorization for the employer to have access and intercept the electronic system of the employee.
This information was provided by Musa Dudhia & Co. The contents of this article are intended to be of general use only and should not be relied upon without seeking specific advice on any matter. For more information on IT monitoring laws in Zambia please contact the author listed below or firstname.lastname@example.org