|Policy, Law, Economics and Politics - Deepening Democracy through Access to Information||This privately-owned website is operated and maintained by Creamer Media|
Published: 28 Oct 2009
|Private and Personal: What the law will say|
|Recently Bill 9 of 2009 was introduced into Parliament - in fact on 25 August 2009. This Bill is entitled "The Protection of Personal Information Bill" and now awaits its final promulgation as an Act.
The Bill is an important piece of legislation as it brings together the South African law on what is or is not private and the definition of and protection of "personal information". The Bill has its origins in the Bill of Rights in the Constitution of the Republic of South Africa, 1996. In the Bill of Rights, everyone is guaranteed a right to privacy subject to reasonable lawful limitation. The interconnection between the Bill and the Constitution is recognised by the Bill as it is designed "to give effect to the constitutional right to privacy, by safeguarding personal information when processed by a responsible party, subject to justifiable limitations that are aimed at:
(i) balancing the right to privacy against other rights, particularly the right of access to information;
(ii) protecting important interests, including the free flow of information within the Republic and across international borders".
As with most new or proposed legislation, the Bill contains a plethora of definitions that need to be understood in order to comprehend properly the scope and ambit of the Bill. The most important definitions, for the purposes of any initial assessment of the Bill are "personal information", "processing", "record" and "responsible party".
The term "personal information" receives a great deal of attention from the Bill. This is an important definition as the scope and ambit of the information to which the Bill will apply and the information that will, in all likelihood, be considered to be sacrosanct from a privacy point of view in South African law all hinge on this definition. The term therefore includes information concerning a person's race, gender, sex, pregnancy status, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well being, disability, religion, conscience, belief, culture, language, birth, education, medical history, financial status, criminal or employment history, e-mail addresses, physical addresses, telephone numbers, blood type, personal opinions, views or preferences, correspondence, views or opinions of other people about the particular person concerned and a person's name or other identifying marks or symbols.
The basic mechanisms of the Bill allow for certain people, referred to as "responsible parties", to process personal information subject to certain protections in the Bill. Collectively, the categories of personal information are referred to as a "record". A record is defined to mean any medium including writing, recorded material, either on a tape recorder or by means of computer software, a label or mark, book, map, plan, graph, drawing, photograph, film, negative or other recording device that is in the possession or control of a responsible party and irrespective of when the information came into existence. Therefore, in order for personal information to fall within the context of the Bill, the personal information must fall within the definition of this term and it must fall within the definition of a "record". The term "responsible party" refers to "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". The terms "public body" and "private body" are each also defined in the Bill. These definitions refer primarily to State Departments and the Government, being a public entity" and juristic and natural persons being "private bodies".
The Bill will apply equally to public and private bodies. The general principles of the Bill are contained in section 8, which provides that personal information must be processed lawfully and in a reasonable manner that does not infringe the privacy of the data subject. Therefore, the Bill recognises that information may be processed but subject to the applicable legislation. Therefore, the Bill contains a number of provisions that allow for the processing of personal information in particular circumstances. One of the circumstances is where a data subject has consented, not necessarily in writing, to the information being processed. The data subject may therefore object, on reasonable grounds, to the processing of information. The objection procedures are set out in the Bill and require the data subject to follow a particular process in order to object lawfully to the processing of any of his or her personal information. The term "data subject" is defined in section 1 of the Bill as "the person to whom personal information relates".
Written by: Neil Kirkby, Director at Werksmans, incorporating Jan S. de Villiers
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