Protection of Personal Information Bill: deliberations

Meeting report

Presentation: Data Subjects Rights: Proposed Options
Mr Henk Du Preez, State Law Advisor and Drafter, explained that there were two options for data subject rights. The Technical Committee had previously requested that data subject rights should appear right at the front of the Bill. However this would result in the re-shuffling of some of the provisions in the relevant chapter and a redraft. There was the proposal in the form of Option 2. It would be possible to put emphasis on data subject rights in the Bill. However it was important to note that the conditions for the lawful processing of personal information placed more emphasis on the data processor. This was what the Bill was about.

The request for Option 1 by the Technical Committee was based on the United Kingdom Act. The UK Act did not commence with data subject rights provisions. At the beginning it had provisions that dealt with the obligations of the data processor. The concern from the Department’s side was that as soon the emphasis was on the rights of the data subject, one would have to go on a fishing expedition to see which rights should be emphasised. Where there was an emphasis on the rights of data subjects in other countries, the focus was on access to personal information and the correction of personal information etc. Clause 3A(3), (4) and (5) were an explanation as to how the provisions of the Bill fit together.

Deliberations
Clause 3
The Chairperson asked Ms Smuts for her views on the proposed options.

Ms M Smuts (DA) replied that she was satisfied with them.

The Chairperson said that he was still not happy with the Bill’s overall structure. The problem was that Chapter 1 had the Definitions and the Purpose whilst Chapter 2 had the Application provisions. The Purpose and Application provisions could perhaps go together. Do the Rights and the interpretation thereof belong in the same clause in 3A of the document? The heading of 3A did not seem to sum up the Committee’s intention. The previously mentioned roadmap was only applicable to some of the sections in the Bill not all of them.

Mr Du Preez replied that the Department agreed that the heading of the clause was debateable however the main concern was to point out the applications of the provisions and not to create substantive provisions. The part of the Bill that was the “Application of the Act” was usually a provision that indicated the intention behind the clauses in the Bill. It was closely associated with the Preamble and the long title of the Bill.

Ms Ananda Louw, State Law Advisor, agreed with Mr Du Preez.

Mr Sisa Makabeni, State Law Advisor, also agreed with Mr Du Preez on the point that the purpose and application of the Bill should not be combined. The purpose indicated what the Bill sought to achieve whilst the application of the Bill was a more substantive provision, which indicated to what the Bill applied.

Dr M Oriani-Ambrosini (IFP) said that all the provisions had to be in the same place and the principles had to be drawn from the provisions.

The Chairperson responded by saying that the Technical Committee would not have the ‘principles or no principles’ debate again as they had already had it. The Application provisions were intended to make the Bill easier to understand for persons both outside and inside the legal profession. The initial reaction of most persons when they read the Bill was immense confusion. The Bill was about protecting data subject’s rights and addressing the problems that people faced when their information was being processed. Clause 3 had to be divided, in other words, the Application and Interpretation provisions had to be separated.

Dr Oriani-Ambrosini recalled that when the Technical Committee went to England the UK Act was nowhere to be seen. Instead the office of the UK Regulator had booklets and posters that explained the rights and procedures of the Act. The Technical Committee had to draft a solid Bill and the Regulator had to provide books that explained the rights and procedures to the public.  

The Chairperson disagreed and said Acts were not there just for lawyers and judges. They had to be easy to understand by the general public.

Ms Smuts agreed with the Chairperson.

Mr Du Preez said that the Department would insert an option that split Clause 3A into two sections.

Ms Louw added that the UK Act had a part 1 preliminary that contained the definitions. The Act then had a heading called Data Protection Principles, which was then a road map. Would it not be possible to put this road map within the first chapter of the Bill?

The Chairperson agreed and asked if the Department could look at the more recent Acts as the UK one was older.

Dr Oriani-Ambrosini expressed concern over 3A(f); it seemed to go too far.

Ms Smuts asked Dr Oriani-Ambrosini if he was worried about the substance of the clause.

Clause 4
Mr Du Preez examined Option 1 in Clause 4(a) which was the one proposed by Dr Oriani-Ambrosini. The word “state” would be replaced with “public body” as the latter was more in line with the definitions in the Bill. Dr Oriani-Ambrosini proposed Option 1 under Clause 4(c). Option 2 was the option prepared by the Department in view of the comments by the Financial Intelligence Centre (FIC). Clause 4(d) dealt with the processing of information for journalistic purposes. Option 1 was an attempt to expand on the existing provisions. Option 2 aimed at dealing with blanket exclusion for journalistic and artistic material. Dr Oriani-Ambrosini prepared Option 3. Option 4 dealt with the exclusion for journalistic purposes.

The Chairperson suggested that Clause 4(c) could be removed as Ms Smuts and Dr Oriani-Ambrosini did not like it. The ANC preferred Option 2, which could be inserted.

Ms Smuts said that any provision that attempted to deal with a sector that already had a code of ethics was not a good idea. The nature of journalistic activities should not be compromised. Option 2 was thus preferable.

The Chairperson said that the ANC’s position was that there was a need for exclusions but that they should not be used to circumvent the Bill. Literary and artistic material should be excluded, but persons processing information should not use these exclusions to escape the Bill’s provisions. Literary and artistic material should be separated from journalistic activities. There has to be a qualification in the event of disputes and this could be achieved by the insertion of bona fide. The Regulator could then decide what was bona fide in the event of a dispute. There has to be a dispute resolution mechanism that was preferably not the courts.

Dr Oriani-Ambrosini did not believe in the practice of drafting comprehensive laws and then leaving the Constitutional Court to create exemptions. It was difficult to determine what was bona fide or mala fide and what constituted literary or artistic material. The Committee should refer to the Constitution. Anything that was the exercise of a constitutional right, including journalistic activities, should be exempt.

The Chairperson pointed out that most of the rights in the Bill of Rights had to be balanced against other rights. The Bill would be meaningless if one had a clause acknowledging the rights protected under the Constitution for certain activities. Dr Oriani-Ambrosini’s Option 3 was unworkable.

Ms Smuts said that the proposal by Dr Oriani-Ambrosini was too wide. Caution should be exercised so that one did not have a situation where there was prior restraint and there was an adjudicative body that decided on content. The courts should rather decide since the common law had to be developed in any case.

The Chairperson asked if the Regulator would not be the first port of call, as they would adjudicate disputes.

Ms Louw noted that the European Union Directive held that one could have an exemption to the extent that it was necessary to reconcile the right to privacy with the rules governing freedom of expression. This could be used, as it would also be in line with current constitutional law jurisprudence.

Mr Du Preez said that practically the Regulator would firstly decide if the Act applied or not in respect to the data processor. Clause 4 would direct him.

The Chairperson said that the issue that had to be settled first was the exclusions. The Bill was not a privacy Act. Could the Department look at an exclusion of material that was for literary or artistic purposes and then have the Regulator as a body that dealt with disputes?

Dr Oriani-Ambrosini said that the press should not register. The Bill would unintentionally do this through its requirement for a code of conduct.

Ms Smuts agreed with Dr Oriani-Ambrosini.

The Chairperson said that the ANC did not want to restrict the media but at the same time it did not want others to use this exclusion to circumvent the application of the Act. The Full Committee would engage further with the South African National Editors Forum (SANEF) on this issue. The journalistic provisions would be left alone for now until after its engagement with SANEF.

Clause 5
Mr Du Preez said that Clause 5 would be inserted under Clause 3 as requested by the Technical Committee as it related to the section on the Application of the Act.

Clause 7
Mr Du Preez said that Clause 7 had a consequential amendment only.

Clause 8
Mr Du Preez said that the only issue was that which was contained in footnote 23.

Ms Louw pointed out that the word “unnecessary” had been in but there had been a submission, which disputed its inclusion, and it was then taken out. It should perhaps come back again.

The Chairperson said that it should be put back in.

Clause 9
Mr Du Preez said that the only proposed amendment was from Dr Oriani-Ambrosini.

Clause 10
Mr Du Preez said that there were no amendments but Clause 10(1)(a) should be flagged for the moment to ascertain whether it would have a direct impact on Clause 25.

Clause 11
Mr Du Preez referred to Clause 11(d)(ii) which was a proposal by the FIC.

Clause 12
Mr Du Preez noted that the instruction from the Technical Committee was that Clauses 12 and 13 should be collapsed and this had been done.

Clause 14
Mr Du Preez noted that there was another option proposed by Dr Oriani-Ambrosini.

The Chairperson asked if the Department had gone through the proposals by IT Governance and Association of Savings and Investments South Africa (ASISA).

Mr Du Preez replied that the Department had just received the submissions and so had not studied them in depth but in the following working draft there would be a response from the Department via a footnote.

Ms Louw added that Dr Oriani-Ambrosini should indicate if he wanted his option to be included.

Dr Oriani-Ambrosini replied that his suggestion was for an exception where a data bank was concerned, only as long as it complied with the Bill.

The Chairperson interrupted and said that Dr Oriani-Ambrosini had already explained the reason behind the clause. The issue was that IT Governance was proposing an addition to this clause.

Mr Mark Heyink, Attorney: Information Governance Consulting, said that what Dr Oriani-Ambrosini was proposing in Clause 14 was that there be a code of conduct but there was also no harm in the provision proposed by IT Governance. If Dr Oriani-Ambrosini’s option was to be accepted then the proposal by IT Governance should be included as well.

The Chairperson said that he was not in a position to respond to the proposal as this was the Technical Committee, the option by Dr Oriani-Ambrosini was there as a for consideration by the Full Committee. The option raised valid points on data banks.

Clause 15
Mr Du Preez said that the first proposed amendment; Clause15 (3) had already been discussed at the previous meeting. Clause 15(3)(b) was already approved by the Committee.

Clause 16
No amendments.

Clause 17
Mr Du Preez said the Technical Committee had requested that this clause should be split into two in order to differentiate between the requirement for the notification to the Regulator and the data subject. Clause 17A were provisions that were copied from the original Clause 17 with additional provisions from Clause 17A(4)(c)(ii).

Clauses 18-21
Mr Du Preez said that there were no amendments in clauses 18-21.

Clause 22
Mr Du Preez said that there was a minor amendment in Clause 22(b)(ii).

Clause 23
No amendments.

Clause 24
No amendments.

Clause 25
Mr Du Preez said that there were proposed amendments as per the meeting of 21 May 2010. Clause 25(1) and (2) aimed to draw a distinction between the processing of information of a child and a data subject that was not a child. The Technical Committee had been concerned with the use of the term “parental consent”. There was now a new proposal from the Department in Clause 25(1)(a).

Dr Oriani-Ambrosini was not happy with the new proposal, as it did not address the concerns of the Committee. A legally competent person for purposes of the law was an 18 year old.

Mr Du Preez responded that the use of the word “legally incompetent” did not strictly relate to the age of majority.

Dr Oriani-Ambrosini interrupted and said that the critical aspect of this clause was that teenagers were transacting all the time and under this Bill they would have to obtain the consent of their parents. The ideal situation would be for a provision that allowed teenagers from 14 years onwards not to have to obtain the consent of their parents.

Mr Du Preez said that the idea behind the provision was not to place the emphasis on the consent but rather that if one was competent to transact then one would have the power to consent.

Dr Oriani-Ambrosini replied that he wanted teenagers to able to express their consent. The child had a right to enforce their privacy rights against anyone including their parents.

The Chairperson said that the argument should not be in this section as it was covered elsewhere in the Bill.
 
Mr Du Preez moved on to Clause 25(2), which dealt with the special information of data subjects that were not children.

The Chairperson said that Clause 25A was a bit clumsily drafted.

Dr Oriani-Ambrosini asked for the difference between “human genetic material” and “human genetic material other than for health purposes”.

Ms Louw responded that there were two different exemptions for two different kinds of genetic material.

The Chairperson said that there should have been a separate section on human genetic material

Ms Smuts agreed.

Ms Louw replied that Clause 25A was sufficient for genetic information that was not health information. The health information was specifically dealt with in the health exemption.

Dr Oriani-Ambrosini said that there was a range of implications that the Department might not be aware of from this clause.

Mr Du Preez said that Clause 25A did not include body specimens but the information thereof.

Dr Oriani-Ambrosini said that the term ‘genetic material’ included specimens. The term ‘genetic data’ should be used instead.

Ms Louw said that as soon as an x-ray for example, was taken and put on record, it would be subject to Clause 25A.

Mr Makabeni agreed with Mr Du Preez and said that the prohibition dealt with the processing of personal information that concerned human genetic material.

The Chairperson requested that the Department should re-look at the clause. The preference would be that health and genetic should be separated. The meaning of the term “human genetic material” should also be re-considered as it could mean one thing for ordinary people and another for scientists. Should children not have their own category, as they could be a special group?

Dr Oriani-Ambrosini said that children needed their own section. There was a need for a further discussion on the consent of teenagers.

Ms Louw said that the intention was not to change anything hence the lack of an age limit in the Bill. The intention was to allow the information of children to be processed where they could transact. Children who needed permission to transact would then also need permission for their personal information to be processed.

Dr Oriani-Ambrosini said that he understood the point but there should be a consent provision from 14 to 18.

The Chairperson suggested that a separate option should be drafted for Dr Oriani-Ambrosini, as the debate was not going any further.

The Chairperson said that he was concerned with Clause 25(1) in the small print. Was there such a thing as “legal incompetence”?

Ms Smuts said that she had never heard of the term.

The Chairperson said that there was no disagreement about content but the structure should be re-drafted.

Mr Heyink said that the issue around electronic communications and the processing of children’s information was that there were a lot of abuses. There had to be strong protection for children.

The Chairperson said that the question should be how children should be protected.

Ms Louw questioned whether or not there was a need for a separate section as this might weaken the requirements under Clause 25.

Dr Oriani-Ambrosini suggested that “academic” and “scientific” research should be inserted under the clause. The word “research” was too wide.

Ms Smuts agreed with Dr Oriani-Ambrosini.

Mr Du Preez said that the Department was under the impression that there was an objection over the use of the word “scientific” in the previous meeting.

Ms Louw said that if the word “research” was removed than it would have to be removed in four other sections as well.

The Chairperson said that it could remain and be flagged. Personally, the preference was for it to remain.

Clause 26
No amendments.

Clause 27
No amendments.

Clause 28
No amendments

Clause 29
Mr Du Preez said that Clause29 (1)(b) had been flagged. The question posed at the previous meeting was whether it should not be deleted.

The Chairperson said that it should be kept as it was and the footnote should be removed.

Clause 30
Mr Du Preez said that the term “sexual life” was excluded as per the instruction of the Technical Committee.

Clause 31
Mr Du Preez said that a provision would be added for criminal behaviour, this would be Clause 315).

Clause 32
The Chairperson said that this did not have to be included as an option anymore.

Clause 33
Mr Du Preez said that there was merely a consequential amendment.

Clause 34
Mr Du Preez said that there was merely a consequential amendment.

Clause 35
Mr Du Preez said that the term “Information Protection Regulator” might not be in line with the ethos of the Act.

The Chairperson asked from where this view came; the term was fine the way it was.

Ms Louw said that if the Protection of Access to Information Act (PAIA) was included in this Act then the term for the Regulator might have to change since PAIA promoted the access of information and “Information Protection Regulator” seemed a bit restrictive.

The Chairperson said that from the ANC’s side there had to be an adjudicator as far as PAIA was concerned. If the Regulator was adjudicating on PAIA matters, would they be protecting information?

Mr Du Preez said that this issue had also been raised in the comments on the Bill.

Ms Smuts said that the DA’s position was that the Regulator had to take on some responsibility where PAIA was concerned. There was thus some sense in making it the Information Regulator or Commissioner.

Dr Oriani-Ambrosini said that the Technical Committee should register the fact that the Regulator was being given the powers of regulation.

The Chairperson said that since it was in the Bill, it could remain as an option.

Clause 36
Mr Du Preez referred to Clause36 (1)(c) where there was a concern by the Chairperson over remunerative work done. There was a proposed amendment to address that concern. If there were a provision for the other members of the office of the Regulator to become full time, then the question arose: should they also have a restrictive provision about other remunerative work, as was the case with the chairperson.

The Chairperson said that the exclusion for other remunerative work was strict and the question of independence would then arise. Performing other remunerative work was a lot broader than employment. Would one find individuals who would be willing to undertake these positions or would they then demand a lot of money in order to be compensated for their not being able to do other work? If judges were allowed to do other remunerative work after obtaining permission from the Minister, could the same principle not be extended for the office of the Regulator?

Dr Oriani-Ambrosini disagreed. The position of judges had been carried over from a different time and the position today would be different. There was no reason for someone to engage in other remunerative work.

The Chairperson said that the main issue was their independence. Employment was too narrow and they should be allowed to obtain permission from the Minister or another person. The wording “may not perform or do any other remunerative work” was too wide.

Dr Oriani-Ambrosini said that the tendency was for individuals to seek other remuneration once they got a position in government; this had to be stopped.

The Chairperson urged the Department to look at having a similar provision as the judges had, specifically the provision of seeking permission from the Minister. A conflict of interest clause or a disclosure clause had to be considered further.

Clause 36A
Mr Du Preez said that Clause 36A(1) was a repetition of what had already been said in the Bill and perhaps it should be deleted.

The Chairperson said that it could be deleted.

Ms Smuts said that it was not necessary.

Clause 37
Mr Du Preez asked if Parliament was responsible for the remuneration of the part time members.

The Chairperson replied in the affirmative.

Ms Smuts said that Parliament did not usually deal with the remunerative figures.

The Chairperson agreed, it would be the Minister after consultations with the Minister of Finance.

Mr Du Preez said that footnote on Clause 37(3) should be deleted. Another clause would be inserted dealing with vacancies and how they should be dealt with.

Clause 38
Mr Du Preez said that this clause dealt with the staff of the Regulator. The Regulator should appoint its own administrative staff including a suitably qualified Chief Executive Officer.

The Chairperson said that the ANC’s position was that there were no problems about staff that were part of the public service being appointed to the office of the Regulator. The concern was that the appointments should be made by the Regulator.

Ms Smuts said that she disagreed with this view and that was her position.

Dr Oriani-Ambrosini questioned the inclusion of civil servants into the office of the Regulator who then had to answer to the Regulator, how would this work practically?

Mr Du Preez replied that this would have to be researched further.

The Chairperson asked for this to be looked at further.

There were no amendments.

Afternoon session

Clause 39
Mr Du Preez informed the Technical Committee that the term “working committee” was brought back into the Bill as per the Technical Committee’s request.

Clause 40
Mr Du Preez said that there were only consequential amendments. Clause 40(3) was a guideline on how proceedings ought to be at the meetings of the Regulator. Footnote 46 had provisions from the Independent Communications Association of South Africa (ICASA) Act that would be added to the Bill.

The Chairperson said that adding the provisions from the ICASA Act made sense.

Clause 41
No amendments.

Clause 42
Mr Du Preez said that it had been proposed that Clause 42 should be deleted.

Clause 43
Mr Du Preez noted that footnote 51 in Clause 43(1)(b)(iv) indicated that the provision was brought over from Clause 46(1). The Department would go through the language of the amendments and might make technical language amendments. The words “when requested to do so” had been deleted under Clause 43(1)(b)(v) as this might not be consistent with one of the other provisions in the Bill. This would be flagged for now.

Ms Smuts said that she liked the idea that in terms of assessments, the Regulator would be allowed to issue his/her own motions or upon request. Would it not be desirable to have the same situation in the case of audits?

Dr Oriani-Ambrosini referred to Clause 43(1)(a)(v) and said that there should be a good reason or qualifier that the Regulator had to show before conducting an audit. There had to be some probable cause.

The Chairperson said that it was a good point that had been raised and agreed with it. The Department should look at how the auditing was conducted as well as when it should be conducted.

Dr Oriani-Ambrosini suggested that the audit could be conducted when there was good cause shown by the Regulator.
 
Clause 44
Mr Du Preez said the Technical Committee had requested in April 2010 that Clause 45(3) should be inserted in Clause 43. The Department would like to raise the question whether Clause 43(3) should be deleted in view of the fact that Clause 43(1)(c) covered enough of the provisions in this clause. Clause 43(1)(c) had already covered the functions of the Regulator very broadly.

The Chairperson asked for Ms Smut’s view.

Ms Smuts agreed with the request for the omission of Clause 43(3).
 
Clause 45
Mr Du Preez said that Clause 45 would be deleted.

Clause 46
Mr Du Preez said that as soon as the Department had a clearer indication of how the finances of the Regulator would be, Clause 46 would most likely be deleted.

Clause 47
No amendments

Clause 48
Mr Heyink suggested that the term “Information Protection Officer” should be changed to Information Officer especially if PAIA were included in this Act.

Ms Louw thought that the suggestion by Mr Heyink was a valid one. However if this were to be debated further, then the question would be how much responsibility should the Information Officer be given? The more responsibility the Information Officer was given, the more qualified he would have to be. In Europe the incumbent was usually a person with lots of expertise and one who worked independently. There was not a high level of expertise in the county at the moment and it would be difficult to find many people who were qualified and able to regulate the relationship between an independent person and a private company. A further difficulty would be prescribing to individual companies how they should deal with their privacy set-up. This was why the Department had opted not to have Information Officers that were highly skilled but those who would be more of a Public Relations Officer (PRO). The PROs would be encouraging the compliance as opposed to monitoring it.

Mr Heyink said that in his recollection of PAIA, where information was concerned, the head of a
private organisation was deemed to be an Information Officer unless there was a delegation of his/her duties. The head of the organisation was not necessarily always in charge of information processing. In the case of public bodies it was usually the head of the organisation who was in charge. The head of the organisation had to then appoint an Information Officer who in turn could appoint a deputy.

Dr Oriani-Ambrosini said that Parliament passed laws and citizens had to comply with them. An entity would be then set up in order to enforce the passed laws. Those who did not comply faced sanctions. This was the way that things should be. In this present instance citizens hired ‘policmen’ within their own structures, as it were to, ensure compliance. If this was the direction that the Bill would take then it had to be clear as to how it should be complied with. It was difficult to comprehend how the responsibilities of compliance were ascribed to the head of an entity.

The Chairperson expressed worry as the debate was becoming redundant and the clause was not that important.

Dr Oriani-Ambrosini said a liability had to be imposed, that was to say, that a ‘thou shalt not’ law should be included in the Bill. If this were the case, then how feasible would it be that this obligation was imposed on the head of an entity?

The Chairperson replied that the obligation was there in order to try and implement the Act. In the case of the PAIA provision the idea would not be to oblige the head to be responsibile for information but rather to delegate. The key was that if the duties were delegated then the power would still derive from the head as opposed to appointing junior officials.

Ms Smuts said that the clause was okay as it stood, but she had difficulties with the ASISA proposal where it stated that certain smaller companies should be exempted. Smaller companies should not be exempted.

Dr Oriani-Ambrosini suggested that each public or private entity should appoint an Information Officer within their ranks.

Clause 49
No amendments.

Clause 50
Mr Du Preez said that there were only consequential amendments that were language related.

Clauses 51
No amendments.

Clause 52
No amendments.

Clause 53
Mr Du Preeez said that the Bill referred to “authorisations” and not “exemptions” in terms of Clause 34.

Clause 54
Mr Du Preez said that he was concerned with the formulation of Clause 54(2) and would like to flag it at this stage. The correct formulation should include providing the Minister with the power to create an offence in terms of the Regulations.

Clause 55
Mr Du Preez said that the Department had tried to not make the wording cluttered as per the Technical Committee’s request. The rest of the amendments were consequential.

Clause 56
Mr Du Preez said that there were only consequential amendments. The proposed wording in Clause 56(6) was an attempt to clarify the meaning of the clause.

Clause 56A
Mr Du Preez reminded the Technical Committee that this clause had been requested by them in order to ensure that a person who did not notify would be guilty of an offence.

Dr Oriani-Ambrosini asked what the difference was between Clause 54 and Clause 56A.

The Chairperson replied that Clause 55 was failure to notify generally and Clause 56A was failure to notify processing, subject to a prior investigation.

Dr Oriani-Ambrosini asked why it would not then fall under Clause 54.

Mr Du Preez replied that Par B followed Clause 54 which dealt with prior investigations.

Dr Oriani-Ambrosini proposed that Clause 54 should be under Clause 56.

Mr Du Preez said that this could be done.

Clause 57
Mr Du Preez said that there were only consequential amendments. The Technical Committee had requested that in Clause 57(1) it should be clarified that more than one code could be issued.

Clause 58
Mr Du Preez said that there were proposed amendments for the heading of of the Clause. There was also a request for Clause 58(1) and Clause 58(3) to be combined.

Clause 59
No amendments.

Clause 60
Mr Du Preez said that that the amendment and revocation of codes where ajudicators were concerned should be catered for in the form of a provision, especially where a matter was pending.

The Technical Committee agreed.

Clause 61
Mr Du Preez reminded the Technical Committee that they had requested clarity on whether the decision of the Adjudicator was on review or appeal when it came before the Regulator. The Department proposed that it should be an appeal to the extent that the Regulator should be able to consider the aggrieved parties compliant afresh.

The Technical Committee agreed

Clause 62
No amendments
 
Clauses 63
No amendments

Clause 64
No amendments.

Clause 65
No amendments.
 
Clause 66
Dr Oriani-Ambrosini said that the Bill had to be in line with international standards regarding unsoliciated electronic communication. It was not clear if this was reflected in the European Union directives. Junk emails were a benign problem that was part of trade and commerce. There was nothing wrong with direct marketing if there was an opt-out provision.

The Chairperson highlighted that unsolicited text messages had an opt-out option where one had to text back and this cost money. Spam on the other hand was a phishing expedition for other person’s email address.

Ms Louw said that Clause 66 should be read in conjection with the roadmap in Clause 3(a)(3) where it stated that “the conditions for the lawful processing for the purposes of direct marketing are reflected in the ordinary conditions”. The ordinary conditions were in 3(a)(1) (i) to (viii). Clause 66 made provision for an entity to approach a person once. Cananda, Australia and the EU countries have all followed this position, the reason was that ordinary direct marketing had an opt-out option but Clause 66 dealt with unsolicited communication.

Dr Oriani-Ambrosini said that Clause 61(1)(a) should be replaced with the following “is given an effective, simple and cost free opportunity to opt out of and stop any further similar or associated mail”. This would balance the interests of all parties. 

The Chairperson suggested that where definitions were concerned, the Bill must incorporate ones that were from South Africa as stated in that particular Act as opposed to changing it in the Bill.
 
Clause 67
No amendments.

Clause 68
Mr Du Preez reminded the Technical Committtee that the concern was that it was not in line with the EU Directive. It would have to be re-phrased.

Clause 69
Mr Du Preez said that the proposed amendment in Clause 69(a)(i) dealt with the submissions that were received. The concern in the submissions was that in other countries juristic persons were not regulated and the flow of information would be restricted if they were. It should be noted that the Department made use of the word “natural persons” and where applicable “juristic persons” was used.
 
Clause 70
Mr Du Preez pointed out that Clause 70(b) made reference to Clause 47. The concern was that if the Regulator contravened the confidentiality that was imposed upon him/her it was not appropriate for the Regulator to investigate the matter.

The Technical Committee agreed.

Clause 71
No amendments.
 
Clause 72
No amendments.

Clause 73
No amendments.

Clauses 74
Mr Du Preez said that this clause had been deleted.

Clause75
No amendments.

Clause 76
Mr Du Preez said that the question was raised as to what the term “Regulatory Body” meant. The Department proposed that only the Regulatory Bodies established in terms of legislation should be mentioned.

Clause 77
No amendments.

Clause 78
No amendments.

Clause 79
Mr Du Preez reminded the Committee that at the previous meeting there was considerable debate about whether the Regulator should be empowered to summon individuals in order to gather evidence. The Department had not drafted anything at this stage. Further guidance would be sought from the Committee.

Dr Oriani-Ambrosini pointed out that his option had not been included and he would like this to be done. The power of the Regulator should be limited to just inviting a person to appear before an inquiry. If someone refused, then the Regulator may show good cause for a warrant that forced that person to appear before the inquiry. This was reasonable. Clause 79(e) and (f) should be amended as well.

The Chairperson said that by empowering the Regulator, persons who obstructed the investigations would be dealt with adequately.

Clause 80
Mr Du Preez said that for Clause 80(2), the wording was changed to 'any of the Regulator's members or staff members'.

Clause 81
Mr Du Preez said that there were only consequential amendments.

Clauses 82
No amendments.

Clause 83
No amendments.

Clause 84
Mr Du Preez said that a question had been raised whether this clause was not covered by the common law as far as privilege was concered. Footnote 67 indicated that to a certain extent the clause was a repetition of the common law however it clarified two aspects. This was the communication between a legal advisor and a third party and the other was with regards to in-house legal counselling. The Bill had a definition of a professional legal advisor in Clause 1.

The Chairperson said that he did not like the term “professional legal advisor” in the Bill. The key concern was that the Technical Committee through the Bill might be trying to ensure the protection of communication between attorneys and their clients in the wrong Bill. The issue was more holistic.

Dr Oriani-Ambrosini agreed.

Mr Du Preez said that he would correct the wording of the definition.
 
Clauses 85
No amendments.

Clause 86
No amendments.

Clause 87 - 89
Mr Du Preez said that there was only a consequential amendment.
 
Clause 90 - 91
No amendments.

Clause 92
Mr Du Preez said that the right to appeal was within a 30 day period and this had been extended to 180 days.

Clause 93
No amendments.

Clause 94
Dr Oriani-Ambrosini suggested that force majeure should be used in Clause 94(a).

Mr Du Preez suggested that in order to get away from the term one could attempt to define it.

Dr Oriani-Ambrosini disagreed as this was a legal concept that was derived from over 2500 years of jurisprudence.

Mr Du Preez gauranteed that the spelling in the Bill was correct.

The Chairperson asked if plain English wording could be used.

Dr Oriani-Ambrosini said that one could not use plain English as there was no equivalent to the French and Latin expressions.

The Chairperson requested the English expression should be put down as an option.

Mr Du Preez said that an English equivalent was “an imposibility as a result of forces beyond your own control”.

[Note: PMG recording ends here. Clauses 95 to 104 not monitored by PMG]

Meeting adjourned.