Smartphone videos dominated the headlines over the course of March 2017, most notably in an altercation at a Spur restaurant in Johannesburg and a viral video of a traffic officer swatting a phone out of a filming motorist’s hand.
This begs the question, when are you allowed to legally video tape and audibly record someone in South Africa? Following recent confusion around the matter, Cape Town based law firm, Michalsons, has broken down exactly when you are and are not allowed to record someone without their consent in South Africa.
“While different jurisdictions will give you different answers, you might be surprised to find out that – in many cases – recording without consent is legal, said Michalsons Kevin Hoole speaking to BusinessTech.
“This includes recording conversations over the phone or even someone speaking in a room full of people, without their consent to do so.”
According to current legislation, recording without consent is unlawful, unless you fall under the exceptions listed in the Regulation of Interception of Communications & Provision of Communication-Related Information Act (RICA), said Hoole.
“These exceptions include where you are a party to the communication, you have the written consent of one of the parties to the communication, or the recording is in connection with the carrying on of business (in which case more specific requirements apply).”
“You are a “party to the communication” if you are the sender, the recipient, or any person included in the communication (such as being copied in on an email).”
An issue arises when the content being recorded is deemed “sensitive”, said Michalsons Kevin Hoole.
“The more sensitive the content is, the less likely it is that all participants would allow the recording of the conversation. Some people would only say certain things in a specific moment, and to specific people.”
“This kind of recording can be harmful, like when Springbok rugby player Luke Watson was recorded making statements about the Springbok jersey and the “Dutchmen” who run the game.”
The RICA act does not actually differ greatly between video and audio recordings, noted Hoole speaking to BusinessTech.
It does however refer to two different types of communication: “direct” and “indirect”.
In the simplest of terms, direct conversation refers to a conversation between two people while indirect communication is a much wider category and typically pertains to all interactions that are not face-to-face including data, speech and moving images.
Providing a case study, Hoole pointed out that a Skype conference call would fall under indirect communication as it was taking place by means of an online telecommunication service. As a result you would need to either be one of the parties or have been given consent from one of the parties to record the video.
In contrast when looking at direct communication, such as recording an altercation between yourself and a police officer or an altercation at a local restaurant, Hoole emphasised that it was important to look at where the conversation is occurring.
“If the utterance is audible to another person in the room, it is likely that you are aware that the person is there. The question is whether the parties involved have given consideration to your immediate presence.”
This is confirmed by Section 4 of the RICA which defines that a member of a party to the conversation is, a person in whose presence and a person who is in audible presence.
This does throw up a couple of little issues, such as hiding in a closet to spy on someone said Hoole, but in such instances there would be other considerations such as an element of criminality.
Speaking on the recent Spur incident, Hoole noted that while the law was slightly vague on the issue where those in altercation may not have necessarily been informed they were being filmed, it would likely still be a case of direct communication (as you are within audible presence) in which case you should legally be allowed to film.
What should you do?
It’s better to be safe rather than sorry, noted Hoole.
“Even if the law doesn’t require you to get the consent of the other party to the conversation, it is still polite to inform them that you are recording it.
“Many customers will feel betrayed if they find out you have recorded their conversations without them knowing. They might not have a legal claim against you, but it could still damage your business image.”
“But always remember, if you are not party to the conversation at all, it is unlawful to record it,” he concluded.