I’VE BEEN RECORDED WITHOUT MY CONSENT! IS IT LEGAL?

By Tshego Monare

Every other day there is a new calumnious video trending on social media exposing people’s violent, racist or corrupt tendencies as the case may be. It is therefore quite simple to deduce that in most videos of this nature, the person(s) being recorded would likely object to being recorded had they been given a choice. Think about Vicky Momberg, the Spur altercation, or think of any of the many disturbing videos of crimes such as hijackings, assault or bribery which make their way to some of our favourite shows like Carte Blanche or the 7pm news. This then leads to the question: ‘Is it legal for someone to record me without my consent?’ This article aims to dispel some myths and misconceptions surrounding this topic.

Let’s see what the law says

This particular area of law is governed by the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“RICA”). Yes, I know you probably only thought that’s just something you have to do when you get a new sim card for your cellphone, but RICA is more than that. The RICA is the South African law that governs the interception of communications and processes associated therewith. For the purpose of this article it also provides the legal framework which dictates what is and isn’t allowed where recordings are concerned.

RICA defines an interception as the:

“…acquisition of the contents of any communication through the use of any interception device, so as to make some or all of the contents of a communication available to a person other than the sender, recipient or intended recipient of that communication, and it includes … the viewing .. of any indirect communication; and diversion of any direct communication from its intended destination to any other destination”

By this definition, it is clear that recordings of communications of people, whether just voice recordings or video recordings, count as interceptions for the purposes of this Act.

RICA then defines an interception device as:

“any electronic, mechanical or other instrument … which can be used  … to intercept any communication”

Accordingly, despite the superfluous wording of RICA which might lead one to think they are talking about sophisticated spyware, something as simple as a cellphone also constitutes an interception device for the purposes of this Act.

The answer is probably yes, yes they can!

Because the RICA makes provision for consent to be obtained before the interception of communications, it follows that the general rule is that you are not allowed to record people without their consent. However, because of the following (arguably wide) exceptions to this rule, most recordings would nevertheless be ‘allowed’ or ‘legal’ even where consent is absent.

These exceptions are:

• If you are party to the communication,
• If you have written permission of one of the parties to the conversation, or
• If the recording is in connection with the carrying on of business.

There are two main types of recordings to consider, which include audio and video recordings:

Audio recordings include recordings of telephonic conversations, recordings of people speaking in a room full of people as well as recordings of direct conversations. This is permissible even without the other party’s permission if you are party to or are within audible distance of the communication. For purposes of RICA, this makes you party to that conversation.

Video recordings can be direct or indirect. A recording can be considered to be a direct video recording where the recording is of a person with whom you are having a direct or face-to-face conversation. Recording a disagreement or an occurrence between you and somebody else, or recording an altercation or occurrence which takes place in a public place such as a restaurant or an airport is permissible because you are within earshot plus you can see it, and therefore you are considered to be part of that conversation.

RICA provides that a person is considered to be a party to a conversation if they are in audible presence of the conversation i.e. in direct communication. This confirms the statements made above. If you can hear and/or see it, then you are likely considered to be party to the communication and are therefore permitted to record even without the permission of the other parties. This is, in my opinion, the widest exception which is the reason why in most instances it is more likely than not that it is legally permissible to be recorded without your consent.

That doesn’t mean it’s legal in all cases

Although I’ve walked you through some of the exceptions to the rule of prior consent above, there are still instances where it is illegal to ‘intercept communications’ i.e. record people. RICA consistently states, under each of the abovementioned exceptions, that interception is not allowed where it is done for the purposes of committing an offence.

Unless you are authorised to do so, recording people through a ‘bugging’ or ‘tapping’ device is not legal. In the same vein, you are not allowed to hide to record people who are unaware of your presence, this would be tantamount to spying. Finally, if you are in no way party to the conversation then it is likely illegal to record that communication.

Remember! I am a lawyer, not your lawyer, and this article is meant to provide broad, general information on this topic and should not be relied on or used as tailored professional legal advice. No liability can be accepted for any omissions, errors or damages flowing from your use of the information contained herein. Always contact a legal professional for detailed and specific advice.