Personal information and the POPI Act
The Protection of Personal Information (POPI) Act is South Africa’s equivalent of the European Union’s Data Protection directive. It has far-reaching implications for anyone that receives, uses, possesses or disseminates personal information that is related to someone (or something else). This law is not about protecting state secrets. It isn’t designed to enable state censorship by criminalizing the publication of information that is in the public interest. POPI exists to protect the rights, particularly the right to privacy, of every individual and organization in South Africa, and by international standards it is remarkably progressive.
Privacy and the Law
The legal framework
The South African legal system is unique. It, like our country, has undergone numerous changes since the 1650’s when the Dutch first settled in the Cape. The basis of our legal system has its roots in Roman-Dutch law, a blend of indigenous Dutch customary law and Roman law (which can be traced back to the times of the Roman Empire). Towards the late 1700’s the British Empire had exerted dominance in Southern Africa and with British occupation came English Law. Although English was adopted as the language of the Courts and many legal principles and procedures were adopted from English law, the Roman-Dutch law was retained and is now common law. Besides Roman-Dutch and English legal influences, our own Indigenous and Customary laws are recognized and legally binding as long as they are in consonance with the South African Constitution. In addition, our laws are continuously being augmented by statutes (which are Acts promulgated by the national or provincial Legislatures), international treaties (where those agreements are in accordance with our constitution) and judicial decisions. The Constitution of South Africa, which was enacted by Parliament in December 1996, is the supreme law of the land in that any law or practice that is inconsistent with the Constitution is invalid.
Privacy as a Right
Privacy is a right that is afforded protection under South African common law and it is also entrenched in our constitution (specifically, section 14). Although the right to privacy is recognized as a fundamental human right, it is not an absolute right and it may be limited by a law of general application. Any limitation, however, must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Certain competing interests, such as the maintenance of law and order or public safety, would take precedence when considering personal privacy and the protection of personal information, but this is generally accepted as reasonable and justified in any free society around the world. Where the concerns of free societies has been brewing is with regard to the use of personal information for other, less justifiable purposes. The vast volume of information that is being collected about individuals, businesses or groups and their day-to-day activities, communications and interactions, can be used and abused for commercial or criminal activity. POPI seeks to address those concerns.
This article is being rewritten by the author as there have been recent developments with regard to the Act and our industry
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