In this article, we will shed some light on the legal position from an employer / employee relationship perspective, address the right to privacy to be considered as well as establish the steps that need to be followed before a Nanny Cam can be used to monitor a domestic worker or nanny and any recording be used for criminal prosecution and/or disciplinary proceedings.
Parents must be aware of the legal implications of installing and making use of a Nanny Cam in their households before doing so. In South Africa the use of electronic devices and the recording thereof is regulated and governed by legislation. The relevant Act is known as the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002 (“RICA”).
RICA requires that you obtain the written consent of the person in your employment that might be captured and or recorded on a Nanny Cam Monitor before you install such a Nanny Cam Monitor. The issue of consent has been debated in our courts to establish the admissibility of recordings being introduced as evidence which display misconduct by employees.
In Satawu obo Assagai v Autopax 2002, 2 BALR 17 the CCMA Commissioner ignored the provisions of RICA’s predecessor, the Interception and Monitoring Act 127 of 1992 (“IMA”) dealing with consent, where an employee was captured on video being involved in a dishonest transaction. The employee claimed that the videotape must be disallowed because he was unaware that he was being taped. The arbitrator dismissed the argument, and found that the provisions of IMA did not strongly apply in civil cases. It is yet to be determined how our Courts and arbitrators will deal with the provisions of RICA, which are stricter than that of IMA.
The reasoning behind obtaining your domestic worker’s or nanny’s consent is to be found in the right to privacy. The right to privacy includes the right to privacy of your communication, which in terms of RICA, includes a prohibition on the monitoring or recording of actions/movements by an electronic device without prior written consent.
The element of consent is however a cause for concern for an employer/parent, in that firstly it is the employer/parent’s premises that are being monitored and the need for consent in respect of your own property seems superfluous, and secondly most employers/parents install Nanny Cam Monitors only when they either suspect that their children are being abused by the domestic worker or nanny or that the domestic worker or nanny is guilty of some form of misconduct in respect of which they want to obtain evidence. Informing the employee of the existence of a Nanny Cam Monitor may thus defeat the purpose of having such in the first instance.
Many authors on the topic are however of the view that in order for an employer to install the Nanny Cam Monitors and for that employer/parent to use such footage in subsequent criminal or disciplinary proceedings, it is advisable that the employee’s written consent be obtained in accordance with RICA.
It is further important to note that any person who intercepts communication of another without that person’s written consent is guilty of an offence in terms of RICA, and upon conviction a fine or imprisonment may be imposed. In terms of RICA evidence of video recordings may only be used in criminal and civil proceedings if it is obtained in accordance with its provisions.
To be safe, it is therefore advisable that you obtain your domestic worker’s or nanny’s prior written consent before you install a Nanny Cam Monitor. The most effective way of obtaining such consent is to make provision therefore in a written employment contract. If you have already concluded such a contract, you may elect to conclude a further addendum to specifically include this aspect or provide a separate consent form.
Further considerations to bear in mind when installing Nanny Cam Monitors:
- It’s illegal to record in a room where a person may hold the expectancy of privacy e.g. bathrooms or an employee bedroom.
- Only cover the most important areas of the house.
- Specify the areas where the Nanny Cam Monitors will be installed.
- If footage is to be used in either civil or criminal proceedings the footage must be clear with the audio sharp where available.
- The footage must be authenticated, and not be tampered with in any way.
- It must be proven that the visuals and audio accurately reflect the incident in question.
The most important aspect when installing Nanny Cam Monitors remains the right to privacy which should be respected and necessitates that your employees’ written consent is obtained beforehand. If necessary, consult with an attorney or labour specialist to help prepare an appropriate agreement or consent form for your domestic worker or nanny to provide their consent to being monitored by a Nanny Cam Monitor.