South Africa: Data Protection Laws of the World Handbook: Second Edition - South Africa
E-Commerce And Privacy Alert

LAW

Although there is currently no data protection legislation in force:

• the Constitution of the Republic of South Africa guarantees the right to privacy;
• certain provisions within the Electronic Communications and Transactions Act regulate the electronic collection of personal information, although compliance with these provisions is voluntary; and
• the Protection of Personal Information Bill ("PPI Bill"), when passed as law will safeguard personal information by imposing stringent obligations on persons holding and processing personal information. The PPI Bill has been submitted for parliamentary approval. It has been approved by the National Assembly and is currently before the National Council of Provinces for deliberation. It is not currently clear when such deliberations will commence.

DEFINITION OF PERSONAL DATA

"Personal Information" is defined broadly in the PPI Bill to include information relating to both an identifiable, living, natural person, and where applicable, an identifiable juristic person/legal entity and includes:

• information about a person's race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well being, disability, religion, conscience, belief, culture, language and birth;
• information relating to the education, medical, financial, criminal or employment history of the person;
• any identifying number, symbol, email address, physical address, telephone number or other particular assignment to the person;
• the blood type or any other biometric information of the person;
• the personal opinions, views or preferences of the person;
• correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;
• the views or opinions of another individual about that person; and
• the name of the person, if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person.

DEFINITION OF SENSITIVE PERSONAL DATA

The Bill provides for a separate category of information called "Special Personal Information" which includes all information relating to a child (who is subject to parental control in terms of the law), and a person's religious or philosophical beliefs, race or ethnic origin, trade union membership, political opinions, health, sexual life or criminal behaviour.

NATIONAL DATA PROTECTION AUTHORITY

Currently there is no authority specifically established for the purpose of data protection. This will change once the PPI Bill is passed as law, as it provides for the establishment of an independent supervisory authority, namely the Information Protection Regulator ("Regulator").

The Regulator is entrusted with extensive powers and duties, including the right to establish committees, promote understanding and acceptance of the information protection principles imposed by the PPI Bill, undertake educational programmes and research, examine proposed legislation, report to Parliament, conduct audits, act as mediator, receive and investigate complaints relating to alleged violations, issue codes of conduct, assist bodies in the development of codes of conduct and publish reports.

In the performance of its functions, the Regulator is obliged to have due regard to and take account of:

• the information protection principles;
• the protection of all human rights and social interests which compete with the right to privacy (including the desirability of the free flow of information);
• international obligations accepted by South Africa; and
• developing international guidelines relevant to the protection of individual privacy.

REGISTRATION

Currently there are no notification/registration requirements for the processing of data.

This position will change when the PPI Bill is enacted. The PPI Bill places an obligation on public or private bodies which alone, or in conjunction with others, determine the purpose of and means for the processing of Personal Information ("Responsible Parties") to notify the Regulator prior to the processing of personal information. The PPI Bill also prescribes the particulars which must be incorporated in any such notification, including the name and address of the responsible party, the purpose of the processing (including any trans border flows of the information), a description of the categories of data subjects, a description of the information or categories of information, and the recipients or categories of recipients to whom the personal information may be supplied. Failure to comply with the notification requirement amounts to an offence. The Regulator may exempt certain categories of information processing from the notification requirement.

The PPI Bill also provides that the Regulator is obliged to maintain a register of all information processing of which it has been notified. The register may, subject to certain exceptions, be consulted by any person free of charge.

DATA PROTECTION OFFICERS

Although there is currently no requirement for public or private bodies to appoint data protection officers, this will be impacted by the PPI Bill once passed as law. The PPI Bill provides for the appointment of Information Protection Officers in respect of both public and private bodies. The Information Protection Officers will be responsible for encouraging compliance with the provisions of the PPI Bill, dealing with any requests made to that body, and cooperating with the Regulator in respect of any investigations by the Regulator in relation to that body.

An Information Protection Officer will be obliged to assume its duties once a responsible party has registered the public or private body with the Regulator.

COLLECTION AND PROCESSING

Currently, there are no laws that regulate the collection and processing of data. The PPI Bill, once enacted as law, will significantly change this position.

The PPI Bill specifically imposes eight information protection principles or conditions, namely, accountability, processing limitation, purpose specification, further processing limitation, information quality, openness, security safeguards and data subject participation. These principles give effect to internationally accepted information protection principles and help ensure that the PPI Bill prescribes the minimum requirements for lawful processing of personal information. Responsible parties may process (which includes collecting) personal information where, inter alia:

• the information protection principles are met;
• the processing is performed in a reasonable manner that does not infringe the data subject's privacy and is for a specific, explicitly defined and lawful purpose related to a function or activity of the responsible party;
• the data subject has been made aware of, inter alia, the nature of the information being collected, the identity of the responsible party and the purpose of the collection of the information;
• in relation to processing, such processing is adequate, relevant and not excessive;
• the data subject has consented thereto, or the processing is necessary for the conclusion of a contract, complies with an obligation imposed by law, protects a legitimate interest of the data subject, or is necessary for pursuing the legitimate interests of the responsible party or a third party to whom the information is supplied;
• the personal information is collected directly from the data subject (unless the information has been made public by the data subject, the data subject has consented to collection from another source, the data subject's interests would not be prejudiced by the collection, the collection is necessary per the grounds contemplated in the PPI Bill, the lawful purpose of the collection would be prejudiced or compliance is not reasonably practical);
• the data subject will continue to have access to the personal information (subject to certain exemptions); and
• the responsible party has taken appropriate technical and organisational measures to safeguard the security of the information.

The PPI Bill distinguishes between personal information and special personal information. The processing of special personal information by responsible parties is prohibited under the PPI Bill. The term "Special Personal Information" is discussed above. The prohibition is, however, subject to a number of exemptions.

TRANSFER

Although there is currently no regulation of the transfer of data, this will be altered by the PPI Bill once passed as law.

The PPI Bill provides that a responsible party may not transfer personal information about a data subject to a third party in a foreign jurisdiction unless:

• the recipient is subject to a law or contract which:
• • upholds principles of reasonable processing of the information that are substantially similar to the principles contained in the PPI Bill; and
  • includes provisions that are substantially similar to those contained in the PPI Bill relating to the further transfer of personal information from the recipient to third parties;
• the data subject consents to the transfer;
• the transfer is necessary for the performance of a contract between the data subject and responsible party, or for the implementation of pre-contractual measures taken in response to the data subject's request;
• the transfer is necessary for the conclusion or performance of a contract concluded in the interest of the data subject between the responsible party and a third party; or
• the transfer is for the benefit of the data subject and:
• • it is not reasonably practicable to obtain the consent of the data subject to that transfer; and
  • if it were reasonably practicable to obtain such consent, the data subject would be likely to give it.

SECURITY

Currently, there is no law that regulates the security of processed data. The PPI Bill, once enacted as law, will significantly change this position.

Under the PPI Bill, a responsible party must secure the integrity of the personal information in its possession or under its control by taking appropriate, reasonable technical and organisational measures to prevent:

• loss of, damage to, or unauthorised destruction of personal information; and
• unlawful access to, or processing of, personal information.

To give effect to these measures, the responsible party must take reasonable steps to:

• identify all reasonably foreseeable internal and external risks to personal information under its control;
• establish and maintain appropriate safeguards against the risks identified;
• regularly verify that the safeguards are effectively implemented; and
• ensure that the safeguards are continually updated in response to new risks or deficiencies in previously implemented safeguards.

BREACH NOTIFICATION

As there is currently no effective data protection legislation in place, this does not apply. The PPI Bill, however, would require breach notification, so this position will change once the PPI Bill is passed as law.

Under the PPI Bill, where there are reasonable grounds to believe that a data subject's personal information has been accessed or acquired by an unauthorised person, the responsible party, or any third party processing personal information under the authority of the responsible party, must notify the Regulator and the data subject, unless the identity of the data subject cannot be established.

Notification to the data subject must be:

• made as soon as reasonably possible after the discovery of the breach;
• sufficiently detailed; and
• in writing and communicated to the data subject by mail (to the data subject's last known physical or postal address), email to the data subject's last known email address, placement in a prominent position on the website of the responsible party, publication in the news media, or as may be directed by the Regulator.

The notification must include such detail as to allow the data subject to take protective measures.

A responsible party may be directed by the Regulator to publicise the breach where the Regulator has reasonable grounds to believe that such publicity would protect the data subject.

ENFORCEMENT

As there is currently no effective data protection legislation in place, this does not apply. The PPI Bill, however, would regulate the processing of personal information and accordingly provides for specific enforcement mechanisms which will change this position once passed as law.

The Regulator is responsible for the investigation and enforcement of the PPI Bill.

Any person may, either orally or in writing (although oral submissions are to be converted to writing as soon as reasonably practicable), submit a complaint to the Regulator in the event of alleged interference.

The PPI Bill provides that, after receipt of a complaint, the Regulator is obliged to investigate the complaint, act as a conciliator where appropriate and take further action as contemplated by the PPI Bill.

In exercising its investigative powers, the Regulator may inter alia administer the oath, summon and enforce the appearance of persons, compel the provision of written or oral evidence under oath, receive evidence irrespective of whether such evidence is admissible in a court of law, and enter and search any premises occupied by a responsible party. Where necessary, the Regulator may apply to a judge of the High Court or a magistrate to issue a warrant to enable the Regulator to enter and search premises.

Any person who obstructs the Regulator, breaches the confidentiality provisions contained in section 47, intentionally obstructs or unreasonably fails to assist in the execution of a warrant, or fails to comply with an information or enforcement notice is guilty of an offence and liable on conviction to a fine or imprisonment (or both) for a period of no longer than ten years in respect of the obstruction of the Regulator, or 12 months in respect of the other offences created by the PPI Bill.

Data controllers have a right of appeal against a decision of the Regulator and a data subject has the right to institute a civil action for damages in a court against a data controller for breach of any provision of the PPI Bill.

ELECTRONIC MARKETING

Currently, the Consumer Protection Act ("CPA") deals with the consumer's right to restrict unwanted direct marketing while the Electronic Communication and Transactions Act ("ECTA") regulates unsolicited electronic communications.

Under the CPA, consumers have the right to pre-emptively block any direct marketing. Any consumer who has been sent any marketing communication may demand the persons responsible for initiating the communication desist from sending any further communication to them. The ECTA has similar provisions and specifically requires that each electronic message be accompanied by an option to cancel (i.e. opt-out) a subscription to a mailing list and also requires the sender of the message to provide specific identifying information, including name and contact information.

There is currently no regulation of electronic marketing from a data privacy perspective with regard to personal information, but this position will be altered by the PPI Bill once it comes into force.

Under the PPI Bill, data subjects have certain rights with respect to unsolicited electronic communications (i.e. direct marketing by means of automatic calling machines, facsimile machines, SMSs or emails). The processing of the data subject's personal information for the purposes of direct marketing is prohibited unless the data subject has given its consent or the email recipient is a customer of the responsible party. When sending emails to a data subject who is a customer, the responsible party must have obtained the details of the data subject through a sale of a product or service, the marketing should relate to its own similar products or services and the data subject must have been given a reasonable opportunity to object to the use of its personal information for marketing when such information was collected.

The PPI Bill also prohibits automated processing of personal information where the data subject will be subjected to a decision which has legal consequences for the data subject or which affects the data subject to a substantial degree. There are certain exceptions to this prohibition.

ONLINE PRIVACY (INCLUDING COOKIES AND LOCATION DATA)

The PPI Bill as of the time of writing does not contain provisions regulating the use of cookies or location data.

© DLA Piper

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