E-Mail privacy : does the government have the right to intercept and or monitor private e-mail communications?

Abstract

Section 14 of the Constitution provides for the right to privacy, which includes the right not to have the privacy of communications infringed. The right is also protected at common law - a breach of a person's privacy constitutes an iniura. E-mail communications are therefore protected by both, the common law and the Constitution. The question that this work seeks to answer is, whether the Government has the right to intercept and/or monitor private e-mail communications. The right to privacy is not absolute, case law and legislation show that this right can be limited. At common law, a valid defence will negate the unlawfulness of the invasion. In terms of the Constitution, the right to privacy can only be limited in accordance with the limitation clause section 36. For each case, courts will have to balance, the government's interest in combating crime and that of the citizen to the privacy of their e-mail communications. In seeking to answer the question, this work considers the protection afforded by the common law and the Constitution. It also considers statutes which limit the right to privacy, including whether these statutes are applicable to e-mail communications and if they are, whether they constitute a justifiable limitation of the right, for example: the Regulation of Interception of Communications and Provision of Communication-Related Information Act and the Criminal Procedure Act - which was enacted when the 'cyber-world' was non-existent. All statutes, applicable to e-mail communications, provide for some form of requirements or guidelines before communications can be intercepted or/ and monitored. The right to privacy is also protected in foreign jurisdictions and is not absolute. There is protection only against unreasonable invasions of privacy. In conclusion, both statutory law and common law permit the government, within limitations, to intercept or/ and monitor private e-mail communications. Where there are guidelines, regulating this power, the circumstance under which and when it can be exercised. This will amount to a reasonable and justifiable limitation and therefore the right will not be violated.