The Committee continued with its clause-by-clause analysis of the Bill. The discussions focused largely on issues of fitness to hold office in the office of the regulator. Matters pertaining to citizenship, residence status and age of office bearers also took centre stage in the discussions. It was finally agreed that a provision requiring an individual to be the only appropriate rider for one to occupy the Office of the Regulator. Other contentious provisions that received much attention included curtailing the powers of the Regulator to compel any person to come and testify, matter relating to information and consent facilitated through the use of automated decision making. Other issues that remained unresolved were, among others, the remuneration strategy of members serving in the Office of the Regulator, attorney-client privilege issues and whether or not to make a provision for the issuing of warning before penalty was imposed for violating the Act. The time required by business as part of the transitional arrangements before complying with the Act was said to remain as stipulated in the Bill, however, individual business establishments could seeks time extension provided they gave a motivation why such should be granted. The Committee resolved to meet again in due course to finalise the provisions under part B of chapter 3 of the Bill.
The Committee continued with its clause-by-clause analysis of the Bill.
Clause 35: Establishment of Information Protection Regulator
The Committee was not entirely satisfied with the provision of clause 35(c) in as far as it related to the Promotion of Access to Information Act.
Mr Henk du Preez, Principal State Law Advisor, Department of Justice, advised that the clause be retained in its current form, however it should be revisited at a later stage.
Clause 36: Constitution and term of office of the Regulator
The Committee decided to make provision for the appointment, as regulator, at least one legally qualified, fit and proper person.
Under clause 36(1)(f), it was agreed that any person who was not a citizen or permanent resident of the Republic should be disqualified from being appointed. It was also agreed that the disqualification provision should be extended to include, among others, any mentally disabled or disordered individual from being appointed to the Office of the Regulator.
The Committee agreed to take-away a provision under clause 36(1)(6) that required a person to be appointed as Regulator to be able to ‘resign from office by writing under his or her hand to the president and will in any case vacate office on attaining the age of 70 years’. The reasoning for that decision was that the Electronic Communication Act had made provisions for other forms of validly recognised means of writing other than by hand and that it would not be just to remove from office a capable official who could still do the job but had reached the age of 70 years.
Clause 37: Remuneration, allowances, benefits and privileges of members
It was suggested that the clause should make provision for a remuneration strategy that was similar to other chapter 9 institution officials. The legal team promised to look into the issue and how it could effect that provision.
Clause 39: Committees of Regulator
The Committee resolved to delete sub-clauses 39(1)(a), 39(1)(b) and 39(2). The regulator would now be empowered to appoint one or more committee if it considered such to be necessary for the proper performance of its functions.
Clause 42: Protection of Regulator
A proposal was made and accepted that there must not be indemnification of the regulator from civil or criminal sanctions if he or she acted with gross negligence or with malice. However, the Committee could not find a resolution about whether the regulator should be indemnified if he/she acted in good faith. A decision was made to leave the good faith provision in place until an alternative resolution was reached.
Clause 47: Duty of confidentiality
The Committee agreed to include a provision to the effect that not only any person but also any member of the regulator so that it was made clear that all members of the Regulator were subject to duty of confidentiality.
Clause 51: Notification to contain specific particulars
Ms Christine Silkstone, Content Advisor for the Committee, expressed a concern that the one week notification provision under clause 51(3) was too short.
The Chairperson asked if there were any Members who felt the same way as Ms Silkstone.
No objections were raised and Members decided that they would rather leave it the way it was crafted.
Clause 54: Failure to notify
Dr M Oriani-Ambrosini (IFP) said he was uncomfortable with the way the clause was drafted, noting there was no provision for any form of warning to anyone who may have contravened the notification provision under clause 51(1).
The Committee agreed to retain the clause without the option of a warning as a sign of stressing the importance of complying with the notification provision.
Clause 56: responsible Party to notify the regulator if processing is subject to prior investigation
There was a slight wording change of the clause to include a reference to clause 55(1).
Clause 65: effects of failure to comply with code
The Committee decided to delete clause 65 in its entirety, saying its provisions were provided for under chapter 10 of the Bill.
Clause 68: Automated decision making
A debate evolved on whether or not decisions taken by way of automated processing of personal information should have legal consequences. The Chairperson asked the legal team to explain to the Committee how other countries dealt with similar provisions in their legislation. He remarked that section 12 of the British Personal Information Act prohibited the data controller from taking legally binding decisions on the basis of automated decision making.
Ms Ananda Louw, Principal State Law Adviser, said they had not done a thorough study of how other foreign countries addressed the matter. She promised to look into it and to give the Committee an answer at a later stage.
The Chairperson said it would be safe to retain a restriction for the time being until a viable workaround was obtained. The Committee finally agreed that the data-controller would not be allowed to continue with processing of information obtained through automated decision making
Clause 72: Mode of complaints to Regulator
The Committee agreed to delete a provision relating to oral complaint under clause 72(1) and further to delete altogether clause 72(3). It was agreed that all complaints should be made in writing and that all verbal complaints must be reduced to writing as soon as reasonably possible.
Clause 76: Referral of complaint to [regulatory body] organ of State
It was resolved that the word regulatory body was not appropriate and should be replaced by the word organ of State as the body where complains could be referred to.
Clause 79: Investigation proceedings of Regulator
The Committee felt the provision giving the Regulator powers to summon a person to appear for investigating purposes was too far reaching. It was suggested and agreed that ‘powers to compel’ should be replaced by pleasure to invite a person to appear before the Regulator. The clause would also provide for the High Court recourse for a warrant to enforce the appearance if the invitation was not heeded.
Clause 84: Communication between legal adviser and client exempt
Members felt that certain provisions in the clause were a repetition of Attorney-Client Privilege as encapsulated in the Attorneys Act of 1968 and that if indeed that was true, the retention of the clause would serve no other better purpose than the protection given in the Attorneys Act.
Ms Louw promised to study the Attorneys Act provision relating to Attorney-Client Privilege to see if the two pieces of legislation addressed the same issues.
Clause 94: Civil Remedies
Dr Oriani-Ambrosini felt strongly, albeit unsuccessful, about making a strict liability provision in order to make the burden of proving a delictual action much lighter for the complainant. In addition, he commented that “legal fees are very expensive and yet the outcome always uncertain. It would be better if strict liability was imposed”.
Clause 95: Obstruction of Regulator
Ms M Smuts (DA) felt the provision needed to specify what offence an individual would be guilty of if found to have hindered, obstructed or unlawfully influenced the Regulator or any person acting on behalf of or under the direction of the Regulator in the performance of the Regulator’s duties under the Act.
Dr Oriani-Ambrosini informed Ms Smuts that her concern was addressed by clause 99 of the Bill.
Clause 99: Penal Sanctions
Ms Smuts felt that the Bill should specify what fines would be imposed.
The Chairperson concurred with Ms Smuts.
Clause 100: Magistrate’s Court jurisdiction to impose penalties
Mr J Sibanyoni (ANC) asked what the significance of clause 100 in the Bill was.
Mr du Preez said the significance of the clause was to curb the sentencing limitation of district magistrate courts.
The Chairperson wondered what penalty limitations were used when one was dealing with certain legislation such as the National Credit Act.
Clause 103: Transitional arrangements
There was consensus that the current wording of the clause should be retained, subject to the provision that any business that required more than the stipulated time would have to motivate why they needed such an extension. The Minister would then consider the merits of the motivation to determine if it met the criteria.
The Chairperson said that the legislation needed to be business friendly and not just be fixed and rigid.
Also, he advised that the outstanding issues under part B of chapter 3 would be addressed in a special meeting set to be reconvened in the next coming week or soon thereafter.
The meeting was adjourned.
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