Interception of Communications Act

• Section 5 defines “intercept” as meaning, in relation to a communication, means listening to, monitoring, viewing, reading or recording, by any means, such a communication in its passage over a telecommunications network without the knowledge of the person making or receiving the communication;

• The general rule according to section 6(1) is that a person who intentionally intercepts a communication in the course of its transmission by means of a telecommunications network commits an offence – fine of $500,000 and imprisonment for seven years.
• However, the exceptions to this rule are where:
o The communication is intercepted in obedience to a warrant issued by a Judge; OR
o The communication is intercepted by an authorised officer
In the interest of national security;
For the prevention or detection of an offence for which the penalty on conviction is imprisonment for ten years or more;
For the purpose of safeguarding the economic well-being of the State; or
For the purpose of giving effect to the provisions of any international mutual assistance agreement.
BUT these intercepted communications are not admissible as evidence in any criminal proceedings. OR
o The person intercepting the communication has reasonable grounds for believing that the person to whom or by whom the communication is transmitted consents to the interception; OR
o The communication is intercepted in the course of employment in the provision of telecommunications services; OR
o The communication is not a private communication; OR
o The communication is a store communication and is acquired in accordance with law; OR
o The interception is of a communication transmitted by a private telecommunications network and is done by someone who has the right to control the operation or use of the network or with express or implied consent.
• Further to section 8(2), a judge would not issue a warrant to allow the interception of communication unless he is satisfied that:
o The warrant is necessary:
In the interests of national security; or
For the prevention or detection of any offence where there are reasonable ground for believing that such an offence has been, is being or is about to be committed;
o Information obtained from the interception is likely to assist in investigations concerning the matters above;
o Other investigative procedures
Have not been or are unlikely to be successful in obtaining the information sought to be acquired by means of the warrant;
Are too dangerous to adopt in the circumstances; or
Having regard to the urgency of the case, are impracticable;
o It would be in the best interest of the administration of justice to issue the warrant; AND
o The interception of communications to be authorised by the warrant is proportionate to what is sought to be achieved by such interception.