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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.
General exclusions
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.
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