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 -
- regardless of form or medium, including any of the
- writing on any material;
- 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;
- label, marking or other writing that identifies or describes anything of which it forms part, or to which it is attached by any means;
- book, map, plan, graph or drawing;
- 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;
- in the possession or under the control of a responsible party;
- whether or not it was created by a responsible party; and
- 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.
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.