Paparazzi, Gun Shots and Love Letters: Protecting and Dealing in and with Personal Information in the POPI-era. Neil Kirby

Transcription

1 Paparazzi, Gun Shots and Love Letters: Protecting and Dealing in and with Personal Information in the POPI-era Neil Kirby

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3 KING REPORT ON GOVERNANCE FOR SOUTH AFRICA 2009 Principle 5.6: The board should ensure that information assets are managed effectively protection of information information management information privacy Principle 6.1: The board should ensure that the company complies with applicable laws and considers adherence to non- binding rules, codes and standards.

4 WHAT DO YOU SAY ABOUT YOURSELF? These are my skills: I can swim five lengths, I know karate (I used to be a yellow belt), I can roll my eyelids back, I can do an impression of Wally from Crossroads, I can run really fast when I m being chased and I can make awesome tracks on my Casio keyboard. London Review of Books Volume 30, Number 8, 24 April 2008

5 PROTECTION OF PERSONAL INFORMATION BILL Objects & purpose constitutional right to privacy processing regulation rights & remedies to protection of personal information voluntary & compulsory measures to enforce rights Section 14 Everyone has the right to privacy, which includes the right not to have (a) (b) (c) (d) their person or home searched; their property searched; their possessions seized; or the privacy of their communications infringed. But also sections 7, 10, 12(2), 15(1), 19 and 21 of the Constitution

6 CONSTITUTIONAL PREROGATIVES As a general rule any person is likely to feel violated, harmed and invaded by the publication of unlawfully obtained information. Any reasonable person would probably feel less concerned if his discussion of an upcoming metropolitan council election, or the state of the global economy, were unlawfully intercepted and subsequently published, than if his discussion of intensely private matters such as family disputes or medical records were illegally intercepted and published for a larger audience. Similarly, on the public interest side of the equation, the public will certainly be interested and accordingly benefit from discussion of matters which are clearly in the public interest. See Tshabalala-Msimang and Another v Makhanya and Others 2008 (6) SA 102 (W) at paragraph 35

7 POPI LANDSCAPE Application Exemptions Exclusions Not in force: not clear due to lack of judicial interpretation but landscape is not expected to change: three pronged inquiry Does it apply to me and my data? Is so, am I or my data or both exempt? If not, do I or my data or both fall into an exclusion?

8 APPLICATION Interpretation give effect to objects and purpose does not prevent exercising or performing its powers, duties and functions in terms of the law (section 3(3)(b)) v processing processing personal information entered in a record responsible party domiciled in Republic automated or non-automated means in Republic Hierarchy of legislation: extensive conditions (section 3(2))

9 DATA SUBJECT PARTICIPATION RIGHTS A data subject has the right to request a responsible party to confirm, free of charge, whether or not the responsible party holds personal information about the data subject; and request from a responsible party the record or a description of the personal information about the data subject held by the responsible party, including information about the identity of all third parties, or categories of third parties, who have, or have had, access to the information (i) (ii) (iii) (iv) within a reasonable time; at a prescribed fee, if any; in a reasonable manner and format; and in a form that is generally understandable.

10 WHO? Information Officer

11 WHAT? Security compromises Requests in respect of data-correction Compliance: encourage and ensure Regulator liaison Chapter 6 investigations Promotion of Access to Information Act No. 2 of 2000

12 CHAPTER 6 Prior authorisation processing Notification required-once-off Written and detailed Await reply in respect of investigation 4 weeks : more detailed investigation 13 week limit Results

13 SO WHAT? Compliance Complaints Investigations by Regulator: onerous Search & seizure Assessments in relation to compliance Information notices: determine interference Enforcement notice: interfered Fines Governance

14 THANK YOU Neil Kirby, Director September 2014 Nothing in this presentation should be construed as formal legal advice from any lawyer or this firm. Readers are advised to consult professional legal advisors for guidance on legislation which may affect their businesses Werksmans Incorporated trading as Werksmans Attorneys. All rights reserved.