WHEN WHAT YOU SAY IS EMBARRASSING: A LESSON FROM LUKE WATSON BY KEVIN ILES

Wednesday, October 22, 2008
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Is a recording, in today’s age of cellphone voice recorders and voice recording pens, legal?           
The secret tape recording of comments by Luke Watson on the Springbok rugby jersey has set off a storm of emotion and debate. Much of the media attention has been focused on what Watson did or didn’t say and whether or not he should have said it. 
But little, if any, attention has been directed at the person who did the recording, says Kevin Iles, an associate in the Dispute Resolution Department at commercial law firm Bowman Gilfillan. 
The relevant Act is the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002 (RICA). 
Iles explains that RICA’s starting position is that no person may intentionally intercept or attempt to intercept, nor may they authorise or procure any other person to intercept or attempt to intercept, any communication in the course of its occurrence or transmission. 
“This begs the questions whether Watson’s comments about the jersey were a ‘communication’ within the meaning of RICA and whether recording those comments amounts to ‘interception’.” 
Iles advises that ‘communication’ is defined to include direct and indirect communication. Of relevance to Watson, he points out, is “direct communication”, which is defined to include an oral communication between two or more persons which occurs in the immediate presence of all the persons participating in that communication. 
“This would seem to directly describe the context of Watson’s Springbok jersey remarks.” 
Iles says that “intercept” is described as the 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. 
So far, suggests Iles, the recording of Watson’s comments would seem to fall within the meaning of an interception of a communication. Whether the recorder was entitled to record Watson’s words in this way would then depend on whether that interception was permitted by RICA. 
Section 4 of RICA states: “Any person, other than a law enforcement officer, may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by any such person for purposes of committing an offence.”  
“So,” says Iles, “while my recording of an eavesdropped conversation in which I am not participating would appear to be unlawful under RICA, recording a conversation which I am having with you, without you knowing that I am recording, does not appear to be unlawful under RICA.” 
Would the constitutional right to privacy have any effect on the implementation of RICA? 
“As yet, there have been no reported judgments on the implementation of RICA and RICA’s focus appears to be on the interception of communication for the purpose of preventing and investigating crime, rather than the current situation where comments are recorded and are later leaked to the media.” 
However, Iles points out, in S v Kidson, a criminal case from 1999, police gave an accomplice to a murder a voice-activated tape recorder to hide in his pocket. The mole, Rabane, then visited Kidson at her house carrying the concealed recorder and recorded a conversation with Kidson in which she discussed the planning and execution of her husband’s murder. 
Kidson’s lawyers contended that the recording should not be admissible into evidence as it infringed the provisions of RICA’s predecessor Act and infringed Kidson’s right to privacy under the Constitution. 
Justice Cameron was at the Johannesburg High Court at the time, before his appointment to the Supreme Court of Appeal, and he held that the purpose of RICA’s predecessor Act was to protect communications from eavesdroppers and not from participants. 
Iles suggests that the same intention appears from section 4 of RICA, which effectively permits unlimited monitoring, interception and recording of conversations by participants to the conversation. 
With regard to Kidson’s right to privacy, Judge Cameron held that there was no discernible privacy interest which had been violated when her conversation was recorded.  Rabane was, in the words of Cameron, “not her spouse or life partner … not in any counselling or therapeutic relationship … not receiving ministration or psychological or pastoral or religious support … there was no legal or contractual relationship between them.  He was not even on the evidence so far before me a close friend.” 
“When Kidson spoke to Rabane she accepted the risk that he might relate her conversation to someone else,” says Iles. “What Judge Cameron appears to be saying is that Kidson did not have a reasonable expectation of privacy when she spoke to Rabane. Had Rabane been in one of the categories referred to by Cameron – a priest or a lawyer or a doctor, for example, – then she might have been able successfully to claim a reasonable expectation of privacy.” 
“Judge Cameron’s test has been interpreted and applied in this way in subsequent criminal matters in other jurisdictions of the country and, at the moment, seems to be the statement of the law in this area.” 
In the absence of a reasonable expectation of privacy, Iles maintains that what you say can (and in Watson’s case will) be reported in the press. 
“If you think your words might embarrass you – rather keep them to yourself.” 
Kevin Iles is an associate in the Dispute Resolution Department at Bowman Gilfillan.