The Protection of Personal Information Bill 2009 (POPI) aims to
bring South Africa in line with international data protection laws.
Members of our Information Law Group provide some insight into the
implications of POPI to assist you in your preparations for the new
legislative regime*.The impact of this legislation will be
far-reaching and will significantly affect the way companies
collect, store and disseminate personal information.
POPI does not apply to the processing of certain types of personal information. A number of general exclusions have been provided for in the Bill, together with a specific exclusion for journalistic, literary or artistic purposes. This Snapshot provides an overview of these provisions.
The Bill does not apply to the processing of information when:
- the information deals with purely personal or household activities (the Bill provides no guidance or definition to assist in the
- anonymous information is processed (ie information that has been "de-identified" to the extent that it cannot be re-identified again);
- a public body processes the information and:
- it involves national security (including activities aimed at assisting in the identification of the financing of terrorist or related activities), defence or public safety; or
- it is done to prevent and combat money-laundering activities; or to investigate and prove offences; or to prosecute offenders; or in the execution of sentences or security measures.
The exclusion given to public bodies however only applies to the extent that adequate safeguards have been established to protect the personal information being processed.
- information is processed by Cabinet, its committees or the Executive Council of a province; or
- information is processed in relation to the judicial functions of a court, as referred to in section 166 of the Constitution.
Exclusions for journalistic, literary or artistic purposes
The Bill does not apply to the processing of personal information:
- solely for the purpose of journalistic, literary or artistic expression when the exclusion is necessary to reconcile, as a matter of public interest, the right to privacy with the right to freedom of expression; or
- for exclusively journalistic purposes by responsible parties who are as a result of their office, employment or profession subject to a code of ethics that provides "adequate" safeguards for the protection of personal information.
The adequacy of the safeguards will be determined with reference to the following criteria:
- the special importance of the public interest and freedom of expression;
- domestic and international standards applied in balancing the public's interest in:
- allowing the free flow of information to the public from the media, in recognition of the right of the public to be informed; and
- safeguarding the protection of personal information of data subjects.
- the need to secure the integrity of personal information;
- domestic and international standards of professional integrity for journalists; and
- the nature and ambit of self-regulatory forms of supervision provided by the profession.
Exemption by the Information Regulator
The Information Regulator is empowered to exempt a responsible party from the application of the Bill in certain circumstances.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.