Protection of Personal Information Bill [B9-2009]: Deliberations

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Justice and Correctional Services

03 November 2009
Chairperson: Mr N Ramatlodi (ANC)
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Meeting Summary

The Committee heard responses by the Department on concerns that they had raised during the formal briefing by the Department on the 10 October 2009. The Department stressed that the Bill was procedural and not substantive. It was principle based and did not prescribe how regulations had to be undertaken within specific sectors, as existing laws already did that. The Bill’s primary focus was good data management.


The Committee outlined the outstanding issues as being the legal dynamics and practical operation of the Bill. The scope and parameters of the Bill were considered to be too broad and were not specified in the Bill itself. The Committee vehemently disagreed with the Department on whether the Bill was substantive or procedural, believing it rather to be substantive in nature. Clause 25 was cited as being primarily substantive and was further testament to the Committee's opinion. One non-complicated route of ensuring compliance through the attachment of an addendum was proposed. Enquiries were made regarding the position of other African countries and why America had refused to implement the Bill as specifically required by the European Union. The Committee unanimously agreed that the Bill was necessary, but felt that there should be a properly South African model, whilst remaining compliant on all the principles. The Committee believed that, in order to do this, part B would have to be either re-written or completely removed. Committee Members would address further questions in writing to the Department, and it was asked to comment on the proposals, during a later meeting.

Meeting report

Department of Justice and Constitutional Development (DOJ): Introductory remarks

Ms Ananda Louw Principal State Law Advisor, responded to concerns that were raised by the Committee in the previous meeting. The right to privacy was a separate right, and this aspect of the right was a new concept, as well as a new field of law. The Protection of Personal Information Bill (the Bill) was procedural and not substantive. It was about good data management and not about solving all the privacy issues. The balance between freedom of expression and privacy was not going to be solved by the Bill. The Bill was also probing how relevant parties were dealing with their data files and what they were doing with them. The ideal situation would be if the rules of compliance were adhered to. The Bill prescribed how information would be collected, kept safe and appropriately destroyed


Ms Ananda Louw Principal State Law Advisor responded to concerns that were raised by the Committee in the previous meeting. The right to privacy was a separate right, and this aspect of the right was a new concept, as well as a new field of law. The Protection of Personal Information Bill (the Bill) was procedural and not substantive. It was about good data management and not about solving all the privacy issues. The balance between freedom of expression and privacy was not going to be solved by the Bill. The Bill was also probing how relevant parties were dealing with their data files and what they were doing with them. The ideal situation would be if the rules of compliance were adhered to. The Bill prescribed how information would be collected, kept safe and appropriately destroyed.

Discussion

Mr M Gungubele (ANC) expressed appreciation for the Department's efforts in assisting Members to better understand the Bill. However, he thought that the debate had progressed beyond issues of whether the Bill was necessary or not. Issues such as the collection cycle, its legal dynamics and how workable the Bill was had to be discussed. He sensed that the debate was more around implementation, the types of information,
as well as the types of entities to whom the Bill was applicable.

Mr J Jeffery (ANC) said that he understood the intention of making the Bill broad where guidelines and principles were concerned. The Bill was, however, too broad. There were drafting and structural problems that needed to be dealt with. He asked whether, for example, this Bill would prevent a European Union (EU) airline refusing to provide passenger information to South African airlines for 2010. He also asked how, specifically, this Bill would address the mischief it was suppose to correct. He asked whether the Bill was, for instance, saying that the publication of information gathered during political canvassing was not acceptable, but that the collecting of that information would be permitted.

Mr Gungubele said that if the scope of the Bill was as broad and principle based as it presently seemed, then it had to be developed further.

Ms Louw responded that the Bill specified what the outcome would be in its codes of conduct, which would provide the procedure to be followed within a sector. The Bill was not trying to solve substantive issues. She reiterated that it was basically procedural in nature. It had to do with good data management.

Mr Jeffery read out Clause 25, which he singled out as prescribing what could not be done. He was concerned that there were already legal principles, such as those falling under the law of defamation that prevented unlawful publication. Clause 25 was trying to change the law without prescribing any ramifications. The clauses were generally procedural, but some were also substantive. The principles were definitely procedural. However, Clause 25 was substantive.

Ms M Smuts (DA) agreed with Mr Jeffery that Part B of the Bill was substantive. She suggested that the whole of Part B had to be removed, with the exception of the health and sexual life section, and the criminal behavior section, because they were the only ones that were procedural.

Mr Jeffery added that he felt in fact that the Bill was more substantive than procedural. He asked if the Bill would protect electronic data information, such as that found on Facebook, for instance.

Ms Louw responded that the procedure for how information was processed was in Part B. Areas which were outside the ambit of the usual user were dealt with there. For instance, she cited that in respect of religious matters, churches would be dealt with in that section. The general exemption that said that processing could be carried out if consent had been obtained was procedural. This resulted in a balancing exercise. Journalists would be able to publish under the existing laws relating to freedom of expression and media law. Part B was stricter than Part A, since it dealt with special and sensitive information, but she argued that it was still procedural.

Mr Jeffery said that the question was what difference was made to the law by Part B and Clause 25. He felt that this was going to create confusion, as there were a number of fairly strict prohibitions which were then subject to fairly specific exemptions, which did not apply if processing was necessary for the establishment exercise or sense of a right or obligation in law. He felt that this was so wide that it was impossible to determine where the limits lay. This was a “lawyer’s dream” in the sense that it gave enormous scope for lawyers to take it to court all the time, to determine the balancing of the rights. He asked again how the Bill would change matters. Political canvassing was not covered in Part B.

Mr L Ndabandaba (ANC) requested a comment from the Department concerning whether this Bill, which effectively was covering a situation that had already been legislated for in more than fifty countries, was unique or innovative.

Ms Louw responded that Part B was drawn from the European Union (EU) directives in terms of the adequacy requirements. The EU directives stipulated that there needed to be stricter rules for the protection of personal information. The EU directives provided that the legislation to be enacted in countries must be similar to but not exactly the same as each other. All EU countries had similar legislation. Organisation of Economic Cooperation and Development (OECD) countries had different legislation to those of the EU. Much of the Bill was drawn from the New Zealand example. The juristic persons were included because of South Africa's Constitution. Tribunals were excluded.

Ms Louw said that the law would be changed in the sense that Clause 25 would force Facebook to have measures in place for the protection of children. Information would have to be protected, regardless of the purposes for which it was used, and permission would have to be obtained from parents

Ms Smuts said that she had found encouragement for Ms Louw's report on page 291.

Ms Louw responded that Footnote 516 of that report referred to a whole new field of law which was constantly developing.

Ms Smuts said that it must be possible to change the law without the EU guidelines, and enquired what were the degrees of adequacy.

Ms Louw responded that one could request adequacy status for a specific sector but this would require South Africa to go back to the EU for approval all the time for each individual sector.

The Chairperson asked who determined this.

Ms Louw responded that there was a Committee made up of all the information commissioners of the EU countries.

Mr J Sibanyoni (ANC) asked to what extent other African countries had followed the EU directives.

Ms Louw answered that most of the African countries were French speaking countries that still had good relations with France, which was encouraging them to buy into the legislation. These African countries had the legislation, and had appointed regulators, but had not started implementation.

Mr Gungubele was worried that Section 25 exemptions placed an unnecessary burden on the State to mediate on various issues.

Mr Ndabandaba asked about the stance that other Southern African countries had taken concerning the Bill.

Ms N Michael (DA) asked if an addendum could be added to the Bill to avoid the bureaucracy of becoming complaint with the EU.

Mr Henk Du Preez, Senior State Law Advisor, Department of Justice, responded that the Electronic Communications and Transactions Act (ECT) was restricted to within a specific sector in South African society. The advantage of the Bill was that South African companies would not have an extra burden of including clauses in agreements within sectors in the EU. The ECT Act would also be subjected to this Bill.

Ms Michael highlighted compliance as an issue and asked if it could not be simplified via an addendum.

Ms Louw responded that once the Bill was promulgated, it provided that 'information had to be destroyed or processed” as “practically” and “reasonably as possible'. When the Bill came into operation, entities would not be deemed immediately non-compliant. They would be subject to this clause.

Ms Michael said that if Members and those who were trained in drafting and interpreting legislation were having difficulties in understanding this Bill, it was all the worse for those without this training or experience. She asked if it was not overcomplicating the issues.

Mr Du Preez said that it should be taken into consideration that on the day the regulator assumed office, there would not immediately be a flood of litigation against those who were non-compliant.

Mr M Oriani-Ambrosini (IFP) asked what information was being protected, on whom this obligation was imposed, and why.

Mr Oriani-Ambrosini also indicated that he did not like the ad hoc exemptions for journalists.

Ms Louw responded that the Bill was principle-based. She noted that the Bill would state that children must be protected. However, how the child should be protected was prescribed in other pieces of legislation, including the Constitution. 

Ms Smuts proposed that exemptions that applied to the government should be removed. More than anyone else, she felt that government departments, should be subjected to the provisions of the Bill. Part B was important and should be developed further. 

Mr Gungubele asked to what extent the EU directives could overhaul pre-existing legislation.

Ms Louw responded that the EU directives were procedural, and not substantive.

Mr Oriani-Ambrosini asked why South Africa had to comply, whereas the United States of America (US) did not.

Ms Louw responded that there was a huge division between the US and the EU. The US was part of the OECD countries. The EU and US came to an agreement, called the Safe Harbour Agreement. South Africa was not economically strong enough to stand up to the EU.

The Chairperson suggested that the Committee Members should pose further questions in written form so as to give the Department time to research and answer them. The session would then reconvene at a later stage, to go through the Bill clause by clause. He noted that the Bill was necessary, but he felt that it must be one that was fundamentally aligned to South African situations, whilst being compliant with EU principles.

He noted that Mr Jeffery and other Committee Members had expressed their concerns about Part B, and had suggested either that it must be rewritten or removed altogether. He requested feedback from the Department on this issue.

The meeting was adjourned.


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