Protection of Personal Information Bill: Department's Responses to public submissions

Meeting report

Protection of Personal Information Bill: Department of Justice and Constitutional Development (DOJ) responses to public submissions
Mr Henk Du Preez, Senior State Law Advisor, Department of Justice, tabled a document setting out the submissions on the Protection of Personal Information Bill (the Bill), and read through the document (see attached presentation for full details). Members raised comments and questions as he was going through the document.

In relation to the submission that the regulator should investigate a matter where there was a dispute, he clarified that this could be done by an alternative regulator. It was necessary to avoid a proliferation of regulators where disputes were concerned, as this would cause delays and add costs.

He noted that enforcement was another form of mediation, and that an enforcement order did not have penal sanctions attached to it. Alternative dispute mechanisms consisted of conciliation, arbitration and mediation.

Mr J Jeffery (ANC) asked what other options were available. He also asked for an explanation of Clause  92 in relation to the appeals.

Ms Ananda Louw, Principal State Law Advisor, Department of Justice, answered that a regulator would try a conciliation and mediation approach. If this was not possible, the regulator would proceed via an enforcement order against the data subject. If the data subject was not in agreement with the enforcement order, they could approach a court.

Mr Du Preez said that First Rand Bank had submitted that some aspects of the Bill exceeded minimum standards. The Department's response was that the information protection principles were in line with internationally acceptable minimum requirements, except where the Constitution provided otherwise. An example of this would be the issue of juristic persons.

Mr M Oriani-Ambrosini (IFP) said that the Constitution held that a juristic person was entitled to the rights contained in the Bill of Rights in as far as its nature of operation was concerned. The limitations clause would not be applicable in this instance, because the limitations clause limited the extent of the right and not the extent of the applicability of the right.

Mr Du Preez agreed that this was correct.

Ms D Smuts (DA) said that even if the limitations clause was found not to be applicable, the balancing of rights would still have to be done.

Mr Oriani-Ambrosini said that the difficulty with the Bill was that the concept of privacy remained in the Constitution, and the need to have it expressed in salutary terms was one of the premises.

Mr Jeffery said that the rights in the Constitution had not been defined, and it was up to the courts to interpret them. The rights were being constantly developed.

Ms Louw said that the issue of juristic persons was not an EU adequacy requirement at all. The inclusion of a juristic person was not in line with the position of other countries. This issue was a legal question. The right to privacy had been developed through court cases. The Bill was important for its principles, the monitoring and its enforcement. Other issues were ancillary issues. These included the inclusion or exclusion of journalists, juristic persons and direct marketing, and the inclusion of opt in/opt out.  These issues would not make or break the Bill.

Mr Oriani-Ambrosini said that he had difficulty in understanding the enormous scope and intended application of the Bill. The enforcement mechanism was not a problem, as long as it was clearly understood to whom it applied.

The Chairperson said that the discussion and debate on the Bill would follow later and Mr Oriani-Ambrosini could ask his question then.

Mr M Gungubele (ANC) requested clarity concerning an earlier response by Mr Du Preez.

Ms Louw responded that the answer given by Mr Du Preez pertained to the matter of drafting in the document.

Ms Smuts referred to the South African National Editors’ Forum (SANEF) submission. This related to the  exclusion of the police and security forces. She asked how this was conditional, to the extent that adequate safeguards had been established in other legislation. She asked what were the 'adequate measures' being measured against.
 
Mr Du Preez answered that 'adequate measures' in other legislation referred to the fact that self exclusion from the codes in the Bill, based on a person already being subject to other principles, had to be aligned with the principles as stated and existing already in the legislation.

Mr Gungubele said that the fact that the Bill contained the words 'positive exclusion, subject to the safeguards' –but without an explanation as to the nature of these safeguards -caused a dilemma. He felt that further explanation was needed on this point.

Ms Louw responded that the privacy framework had to be taken into account. Sector-specific provisions, such as laws protecting privacy information for security forces, would be harmonised together with those contained in the Bill. Adequate safeguards had to be harmonised.

Mr Jeffery asked what was the definition of a journalist, as well as the definition of “journalistic”. 

Mr Oriani-Ambrosini felt  that the most important aspects of the press were not being clarified or raised in the Bill.

Ms Louw responded that it was not the intent of the Bill to exclude specific persons. The Bill rather excluded their activities. This approach was adopted from the EU directives. The Department's response was that there was no need for an exclusion for “ journalistic purposes”. It was impossible to make such a distinction because anybody could be a publisher. The persons excluded were those who, by virtue of their office, employment or profession, were subject to a code of ethics. The exclusion related to the regulator and the regulatory aspect of the Bill. The Department had taken into account the fact that it was difficult to distinguish between journalists and bloggers. The media’s submissions were concerned with the encroachment on the right to freedom o f expression. This was not the case.

Ms Smuts expressed doubts concerning Part B, which related to the special protection of personal information. She asked why there were exceptions, and on what grounds the prohibitions were in place. She suggested that he prohibitions flew in the face of the market place for ideas.

Mr Jeffery asked how door-to-door electioneering, and personal pictures of individuals being printed in newspapers, would be affected by the Bill.

Ms Louw responded that Clause 32 was a general exemption and this was of considerable scope. Clause 32 held that the prohibition of personal information referred to in Clause 25 did not apply if, firstly, as stated under sub-clause (a),  it was done with the consent of the data subject or parents of a child and secondly, as stated in sub-clause (b), if the processing was necessary for the establishment exercise for the sense of a right or obligation in the law. All rights that were protected in the Constitution, in legislation or in the common law would fall under this exemption.

Ms Smuts said that she was not satisfied at all, because if this was the case, then she could not understand why flat prohibition was written at all.

Mr Jeffery asked if the Bill was giving effect to the right to free political activity, and the right for a party to keep records of all people in a particular ward.

Ms Smuts asked why the points outlined by Mr Jeffery should be prohibited in the first place.

Ms Louw said that a distinction was made where personal information was dealt with, with the consent of a particular person, in the establishment or exercise or sense of a right or obligation in law. This wording came directly from one of the EU directives. The idea was to emphasise the importance of these areas. The Bill asked that everybody must consider the privacy of others before acting. Privacy should be included as part of the design objective.

Mr Jeffery said that a principle-based approach made it unclear as to what a person could or could not do. He was not sure about the possible confusion of commercial and non-commercial activities. He asked again if this Bill would help those faced with non commercial activities such as the door to door canvassing of a political party.

Mr Gungubele said that a problem statement was important for the Bill. He asked to what extent would this undermine and stifle the minimum social interaction. He shared the concerns of Ms Smuts and Mr Jeffery.

Ms Smuts asked if privacy was to be dealt with across the board, or between the public and private sector.

The Chairperson suggested that the Department should prepare a memorandum regarding the reasons behind the EU passing this law for its member states. This was important for the understanding of the origins of the Bill.

Ms Louw said that the first priority was that there be adequacy in the country. There were different levels of compliance. The Department had decided to have a generic Act. The reason for this was to prevent a situation where there would be separate pieces of legislation for different areas.

Mr Gungubele said that the language of the Bill should show sensitivity to various issues.

Mr Jeffery responded that the main concern would be whether the Bill was too wide and ended up with unintended consequences, and possibly there were too many complications.

The Chairperson said that the Committee would deliberate further on the Bill and then go through it clause by clause with the Department.

The meeting was adjourned.