South Africa: The Protection Of Personal Information Bill: Showing Me, Showing You

Last Updated: 15 December 2011
Article by Neil Kirby

There has been much in the media of late concerning the seditiously entitled "Secrecy Act" (more properly known as the Protection of State Information Act) and the impact that this legislation will have on the availability of certain information currently in the hands of Government. A sister piece of legislation is the Protection of Personal Information Bill or, as it is disarmingly known, "POPI".

POPI has not received as much media attention as the Secrecy Act albeit that the goals and objectives of POPI have arguably more far-reaching consequences for the control and movement of information about individuals.

Fundamentally, every person's right to privacy is protected in section 14 of the Bill of Rights. It is a right that only worries individuals when their privacy has, in one form or another, been invaded, compromised or prejudiced. Therefore one of the principles recognised by POPI is that every person has, "the right to privacy [, which] includes a right to protection against the unlawful collection, retention, dissemination and use of personal information".

POPI states, in its preamble, that, "the State must respect, protect, promote and fulfil the rights in the Bill of Rights". Therefore, POPI is an important piece of legislation in so far as it will, for the first time, control the manner in which personal information is obtained, used, stored and maintained.

Therefore understanding the provisions of POPI is an important pre-requisite to understanding whether or not one's business activities, in so far as concerns personal information, are compliant with the overall constitutional directives that are contained in the Bill of Rights and POPI.

POPI is now in its fifth working draft, which indicates the intense legislative process through which it is currently moving. There are a number of facets to POPI and not all of them can be dealt with in an article of this nature. This article is therefore designed to introduce the concept of how information is to be handled once POPI becomes an Act.

The machinery that is to be used by POPI to drive its effects in law is set out in Chapter 2, which concerns the application provisions of POPI. Fundamentally, POPI applies to the processing of personal information.

"Personal information" defined

The term "personal information" is defined with reference to a number of categories of information (section 1 of POPI). The definition of "personal information" is designed to be as broad as possible to ensure that POPI has the widest application.

This wide application of POPI is partly tempered, by exclusions and exemptions that pertain to particular categories or types of information.

Therefore, it is important to understand both the general principles of POPI and the exemptions and exclusions. This complicated interaction requires an understanding of:

  • the various categories of information, and
  • the purposes behind the movement of information between individuals for certain purposes.

"Processing", "records", "data subjects" and "responsible party" defined

The overall legislative effect of POPI is concerned with the so-called "processing" of information. Therefore, once one comes to grips with what information is dealt with by POPI, one must then understand what information may be processed and how this processing is defined in POPI. This understanding is required in order to assess the application of POPI to every day business activities.

The definition of "processing" is currently under debate as two proposed definitions have been presented.

"Record" is also a definition that requires closer examination in order to understand how it applies to any particular business activity.

"Record" is currently defined as and including "any recorded information -

  1. regardless of form or medium, including any of the following:

    1. writing on any material;
    2. information produced, recorded or stored by means of any tape recorder, computer equipment, whether hardware or software or both, or other device, and any material subsequently derived from information so produced, recorded or stored;
    3. label, marking or other writing that identifies or describes anything of which it forms part, or to which it is attached by any means;
    4. book, map, plan, graph or drawing;
    5. photograph, film, negative, tape or other device in which one or more visual images are embodied so as to be capable, with or without the aid of some other equipment, of being reproduced;

  2. in the possession or under the control of a responsible party;
  3. whether or not it was created by a responsible party; and
  4. regardless of when it came into existence".

For the first time in the drafting history of POPI, there is express recognition of the particular rights of so-called "data subjects". A data subject is defined as the person about whom personal information relates or a record is kept. These rights form an important part of the machinery of POPI as they establish the obligations that are imposed upon persons keeping records or dealing with personal information.

The person who ultimately holds and maintains, or keeps, or processes information is referred to in POPI as "the responsible party". This term is defined as "a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and means for processing personal information". This is a very broad definition and applies to any person holding personal information about data subjects.

Interpretation and application

The application provisions of POPI rely on principles of interpreting the words used in legislation. POPI, based on the current draft, directs the reader to interpret it in a manner that:

"(a) gives effect to the purposes of the Act set out in section 2; and

(b) does not prevent any public or private body from exercising or performing its powers, duties and functions in terms of the law as far as such functions, powers and duties relate to the processing of personal information and such processing is in accordance with this Act or any other legislation, as referred to in subsection (3), that regulates the processing of personal information".

The current draft section 4 of POPI requires that the rights of data subjects, be respected by persons holding or keeping personal information or records, and must be read with the proposed section 5 concerning the general principles relating to the lawful processing of personal information. Primarily, the processing of personal information must adhere to eight principles that are set out in proposed section 2.

The so-called "information principles" define the rights and obligations of parties about whom personal information or records relate, on the one hand, and those keeping such records or personal information, on the other hand.

Proposed section 5 is easily split into two parts with the first part dealing with the information principles and their application and the second part dealing with exclusions applicable to when those information principles will not apply.

In this regard, proposed section 6 deals with certain express exclusions in relation to the processing of information to which POPI will not apply. Once again, there are a number of drafting options that have been included in the fifth working draft of POPI, which indicate the nature of the current debate concerning the application of POPI and its ultimate destiny as an Act of Parliament.

Overall, POPI will not for example apply to personal information that:

  • is non-commercial, and non-governmental or related to household activities;
  • has been de-identified to the extent that it cannot be re-identified again;
  • is held by or on behalf of a public body, which involves national security or deals with the identification of the proceeds of unlawful activities and the combating of money laundering activities;
  • is created exclusively for journalistic purposes.

There is currently a debate concerning the exclusion of certain information for so-called journalistic, literary and artistic purposes. This remains a contentious area of POPI, which is part of a drafting debate currently occurring in Parliament.

In addition to the express processing exclusions that POPI contemplates, there are a number of exemptions that are contemplated by POPI in relation to the processing of certain "special personal information".

Bear in mind that the Information Regulator may also exempt, once POPI becomes an Act, certain additional categories of information from the application of POPI.

The current categories of special information and certain of the related exemptions, which are not, as yet, final, are as follows:

  • personal information concerning a child in circumstances where that child is not legally competent to take any action or a decision in respect of any matter concerning him or her;
  • the religious or philosophical beliefs, race or ethnic origin, trade union membership, political opinions, health, DNA or sexual life of a data subject;
  • the criminal behaviour of a data subject in so far as it relates to the commission or alleged commission by a data subject of any offence or the proceedings in respect of the offence committed or allegedly committed.

Certain of the exemptions allowing the processing of personal information, may include personal information for example, information:

  • for historical, statistical, academic or scientific research purposes, subject to certain limitations;
  • in the public interest and "appropriate guarantees have been in put in place in law to protect the data subject's privacy";
  • on a data subject's religious or philosophical beliefs being processed by a spiritual or religious organisation or independent sections of those organisations;
  • with respect to their members or employees that is processed by institutions founded on religious or philosophical principles in order to achieve their aims and principles;
  • processed by other institutions provided that the processing is necessary to protect the spiritual welfare of the data subjects concerned, unless they have indicated that they object to the processing;
  • concerning a data subject's race, in so far as it is necessary or essential to identify the race of the data subject and it complies with laws to protect or advance persons or categories of persons disadvantaged by unfair discrimination;
  • about a data subject's trade union membership, which is processed by the trade union to which the data subject belongs or the trade union federation to which that trade union belongs, if the processing of that information is necessary to achieve the aims of the union or the federation, as the case may be;
  • on a data subject's political persuasions:
    • processed by an institution founded on political principles and the information is on its members or employees, or
    • if a data subject is intending to form a political party, or participate in the activities of, or engage in the recruitment of members for, or canvass supporters or voters for a political party with a view to electioneering purposes;
  • the data subject's health which is being processed by medical professionals, health care institutions or facilities or social services for, "the proper treatment and care of the data subject" or for the administration of the institution or the professional practice concerned. (This includes insurance companies, medical aid schemes, medical aid scheme administrators and managed healthcare organisations in so far as it is necessary to process that information for these companies or institutions to fulfil their obligations in law);
  • health information being processed by schools, institutions of probation, child protection or guardianship, the Minister of Correctional Services, certain administrative bodies, pension funds, employees or institutions working for them. This is in so far as it is necessary to process that personal information for the implementation of laws dealing with issues concerning pensions and insurance agreements, or collective agreements, or the reintegration of or support for workers, or pensions, or persons entitled to benefits in connection with sickness or working in capacity;
  • about a data subject's criminal behaviour, which may be processed in relation to bodies charged by law with applying criminal law or by responsible parties who have obtained that information in accordance with the law and the provisions related to the protection of legitimate interests in relation to the prosecution of criminal offences in terms of the law.

Whilst POPI extends certain protection to personal information and records, it also removes that protection by the application of exemptions. Therefore, it is important to have a proper understanding of both the protection afforded by POPI and the exclusions applied to that protection, to appreciate whether or not POPI applies to a particular type of information held by a so-called "responsible party" within the course and scope of its particular business.

Conclusion

Understanding the implications of POPI means understanding the particulars of one's business: and in particular

  • the information that one holds;
  • the destinations to which that information is sent on a daily basis;
  • the measures already in place to protect information held by an organisation and whether such measures are sufficient to protect that information as is and as will be required by law;
  • the nature of the protection that will be afforded to that information by the law;
  • the type of consent that will be required from a data subject to be able to process that information once POPI becomes law; and
  • the rights that the responsible party has in relation to that information once the information falls within the ambit of POPI.

Certainly in so far as information is a valuable asset and becomes more valuable as it is collected and merged with other information, the impact on the value of a particular information asset of regulatory control should not be under-estimated. Therefore, the implications for such a valuable asset must be carefully examined and understood prior to POPI becoming law.

In an age where information is powerful, the primary effect of POPI will be that only those who manage to control information lawfully will be in a position to use it powerfully.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
KPMG, South Africa
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
KPMG, South Africa
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions