The Department of Justice and Constitutional Development and the South African Law Reform Commission continued to brief the Committee on the Protection of Personal Information Bill.
The Department of Justice told the Committee what the rights of data subjects were regarding unsolicited electronic communications and automated decision making. It was said that the processing of personal information of data subject for the purpose of direct marketing by means of automated calling machines and SMSs and electronic mail was prohibited unless the data subject had given his/ her consent.
According to the Bill, a responsible party in the Republic could not transfer personal information about a data subject to a third party in a foreign country unless the recipient of the information was subject to a law, binding code of conduct or a contract.
However when looking at the Civil Remedies that an individual would have, it was still clear that people still had to pay for justice, a member of the Committee said that he was not happy about that, as a data subject may not have the financial resources to institute a civil action if any of their rights according to Bill were violated. Members asked if the clauses would prohibit telephone companies from selling personal information. They also enquired about which regulators would be responsible for dealing with the information.
The question of who would appoint the Information Protection Regulator had been left open for the Committee to decide. Public hearings would be held on 13 and 14 October 2009.
Ms Ananda Louw, Principal State Law Adviser: South African Law Reform Commission, and Mr Henk Du Preez, Senior State Law Advisor: Department of Justice and Constitutional Development, briefed the Committee on the Protection of Personal Information Bill. The two delegates continued from where they had stopped the briefing the previous day.
Mr Du Preez took the Committee through the Bill going through each clause that was not covered the previous day. According to the Bill, a responsible party in the Republic could not transfer personal information about a data subject to a third party in a foreign country unless the recipient of the information was subject to a law, binding code of conduct or a contract
Members of the Committee wanted to know how the Bill would affect telephone directory companies. It was agreed that a data subject had to be informed free of charge before their information was included in the telephone directory. The directory also had to tell an individual about any further use of their personal information, such as giving the information to a third party.
While going through the Bill, Mr Du Preez stated that the regulator was the most important person in ensuring that the Bill would be adhered to once it became an Act.
However the regulator had the discretion to decide whether or not action needed to be taken against a transgressor.
Any person convicted of an offence in terms of the Act, was liable to a fine or to imprisonment for a period not exceeding 10 years, or to both a fine and imprisonment.
Clause 67 and 68
Ms Smuts asked if the clauses would prohibit telephone companies from selling personal information, as Telkom was selling people’s telephone numbers to marketing companies.
Ms Louw replied that if the company got the individual’s consent to sell the information to other businesses then that would not be prohibited. They would normally stipulate in their contracts if they would give your information to someone else.
Mr Gungubele asked how strictly would the rule in Clause 68(1)(b) be applied.
Ms Louw said that under the information protection principles, a company or an individual collecting personal information had to indicate for what they were going to be using the information. If they wanted to use it for something else, then that needed to be indicated when the information was collected. The client had to be informed free of charge about any further uses of the personal information.
Ms Smuts asked which other regulator the Department had in mind, as the issue of dealing with information was being taken away from the SA Human Rights Commission.
Mr Du Preez explained that what they had in mind were regulators such as the Banking Council, Ombudsman etc.
Ms Smuts asked why there were separate provisions for the investigation by the investigator, as there was already a pre-investigation.
Mr Du Preez replied that as soon as there was a complaint and a formal response, and there was no dispute between the parties then the matter could be settled. However if there was no harmony between the two parties, then the decision to investigate would probably be taken.
Mr Holomisa asked if the word “considered” in Clause 93(1) should not be replaced because when one considered something, that did not mean that one had decided.
Mr Du Preez made a note of the comment on his personal copy of the Bill. He told the Committee that he would look into the language issue.
Mr Holomisa said that he was not happy with the fact that people had to pay to access justice. The data subject may not have the financial resources.
Ms Smuts said the clause was also dependent on what the Committee decided with regards to the independence of the regulator. However if Mr Du Preez had an argument against that, then the Committee would allow for that.
Mr Du Preez welcomed Ms Smuts’ comment and said that the clause would be revisited.
The meeting was adjourned with the Committee agreeing to meet the following week to allow the public to make submissions on the Bill.
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