{"id":167107,"date":"2017-04-08T15:00:11","date_gmt":"2017-04-08T13:00:11","guid":{"rendered":"https:\/\/businesstech.co.za\/news\/?p=167107"},"modified":"2017-04-10T11:01:28","modified_gmt":"2017-04-10T09:01:28","slug":"__trashed-65","status":"publish","type":"post","link":"https:\/\/businesstech.co.za\/news\/trending\/167107\/__trashed-65\/","title":{"rendered":"When you can – and can’t – legally record someone in South Africa"},"content":{"rendered":"

Smartphone videos dominated the headlines over the course of March 2017, most notably in an altercation <\/a><\/strong>at a Spur restaurant in Johannesburg and a viral video of a traffic officer swatting <\/a><\/strong>a phone out of a filming motorist’s hand.<\/p>\n

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.<\/p>\n

“While different jurisdictions will give you\u00a0different answers, you might be surprised to find out that\u00a0\u2013 in many cases\u00a0\u2013 recording without consent is legal, said Michalsons Kevin Hoole\u00a0speaking to BusinessTech.<\/p>\n

“This includes recording conversations over the phone or even someone speaking in a room full of people, without their consent to do so.”<\/p>\n

\n

Audio recording<\/strong><\/h3>\n

According to current legislation, recording without consent is unlawful, unless you fall under\u00a0the exceptions listed<\/strong> in the Regulation of Interception of Communications & Provision of Communication-Related Information Act (RICA), said Hoole.<\/p>\n

“These exceptions include where you are a party to the communication, you have\u00a0the 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).”<\/p>\n

“You are a\u00a0\u201cparty to the communication\u201d if you are the sender, the recipient, or\u00a0any person included in\u00a0the communication (such as being copied in on an email).”<\/p>\n

\n

Sensitivity<\/strong><\/h3>\n

An issue arises when the content being recorded is deemed “sensitive”, \u00a0said Michalsons Kevin Hoole.<\/p>\n

“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\u00a0specific moment, and to specific people.”<\/p>\n

“This kind of recording can be harmful, like when Springbok rugby player Luke Watson was recorded making statements\u00a0about the Springbok jersey and the \u201cDutchmen\u201d who run the game.”<\/p>\n

\n

Video recording<\/strong><\/h3>\n

The RICA act does not actually differ greatly between video and audio recordings, noted Hoole speaking to BusinessTech.<\/p>\n

It does however refer to two different types of communication: “direct” and “indirect”.<\/p>\n

In the simplest of terms, direct conversation refers to a conversation between two people\u00a0while indirect communication is a much wider\u00a0category and typically pertains to all interactions that are not face-to-face including data, speech and moving images.<\/p>\n

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.<\/p>\n

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.<\/p>\n

“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\u00a0immediate presence.”<\/p>\n

This is confirmed by\u00a0Section 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.<\/p>\n

This does throw up \u00a0a 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.<\/p>\n

Speaking on the recent Spur incident,\u00a0Hoole noted that while the law was slightly vague on the issue\u00a0where 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.<\/p>\n

\n

What should you do?<\/strong><\/h3>\n

It’s better to be safe rather than sorry, noted Hoole.<\/p>\n

“Even if\u00a0the law doesn\u2019t require you to get\u00a0the consent of the other party to the conversation, it is still polite to inform them that you are recording it.<\/p>\n

“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.”<\/p>\n

“But always remember, if you are not party to the conversation\u00a0at all, it is unlawful to record it,” he concluded.<\/p>\n

\n

Read:\u00a0Are dashcams actually legal in South Africa?<\/a><\/strong><\/p>\n","protected":false},"excerpt":{"rendered":"

When are you allowed to legally video tape and audibly record someone in South Africa? <\/p>\n","protected":false},"author":10,"featured_media":167253,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[26],"class_list":["post-167107","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-trending","tag-headline"],"_links":{"self":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/167107","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/users\/10"}],"replies":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/comments?post=167107"}],"version-history":[{"count":35,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/167107\/revisions"}],"predecessor-version":[{"id":169569,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/posts\/167107\/revisions\/169569"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/media\/167253"}],"wp:attachment":[{"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/media?parent=167107"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/categories?post=167107"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/businesstech.co.za\/news\/wp-json\/wp\/v2\/tags?post=167107"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}