An email to a collegue qualifies as a “private communication”, secure from unauthorised interception under the amended Crimes Act, even though the sender may reasonably expect it to be intercepted by spam filters and inhouse moderators of acceptable content, says IT lawyer Michael Wigley.
Provisions in the recently passed amendments criminalising unauthorised interception apply only to “private communications”. A contentious clause excludes from that definition a communication “occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so”.
But despite the routine use of spam filters and human moderators on businesses’ incoming email and website warnings that email in general is not a secure medium, the sender is still entitled to regard the communication as private, Wigley says.
If a subscriber to an email discussion list used her work address and the company’s filter bounced it and said the email would be “quarantined” and referred to a human moderator, what then? The sender would have signed no agreement with the company on acceptable language, and not consented to its examination of his or her emails.
Would the sender have a case against it under the amended law for unauthorised interception of “private communication”?
Wigley was unwilling to give a definite “no” to that question.