The Technical Committee dealing with the Protection of Personal Information Bill received a presentation from the drafters on outstanding issues from previous deliberations. The issues were divided into annexures. Annexure A dealt with the processing and supervision of personal information. Part of the Regulator’s functions was awareness raising via advice, guidance and training. The Regulator would also settle disputes arising out of operational disagreements through mediation and consultation. There was a need for more effective enforcement strategies. The systemic approach still formed the basis of privacy legislation worldwide, but there was broad agreement that more effective sanctions were needed to complement the systemic approach.
Annexure B dealt with the structure of the Information Commissioner as the architecture and functions of the Regulator were very closely related. It looked at the concern that the Protection of Personal Information Bill may not be constitutional as it conferred upon the Regulator sole legislative, investigative, adjudicative and prosecutorial powers.
Annexure C dealt with administrative fines and various options and scenarios were included. Comparisons showed some were silent on whether oversight bodies would be able to impose fines and order compensation for damages. Some regulatory authorities did not issue fines and in some instances they did not have the power to issue binding orders. An important issue to take note of was either it was feasible to introduce administrative fines where public bodies were also subject to provisions of the Bill.
Annexure D dealt with the powers and functions of the Regulator in terms of the Promotion of Access to Information Act. The proposed consequential amendments for the Promotion of Access to Information Act provided for the substitution of the phrase ‘South African Human Rights Commission’ with ‘Information Regulator’. The effect of the amendments was to provide the Regulator with the powers currently exercised by the SAHRC in terms of the Promotion of Access to Information Act. The amendments would also make all the powers and duties of the Regulator in terms of the Protection of Personal Information Bill. There were two key issues: the first was whether there was enough consultation over the newly proposed consequential amendments to the Promotion of Access to Information Act and the second was whether the proposed amendment of the Promotion of Access to Information Act resulting in the granting of specific powers of dispute resolution to the Regulator would result in consequential amendments.
The Committee wanted to know if the South African Law Reform Commission had considered the issue of administrative fines. A Member commented that fines of a percentage of turnover were effective as those companies were abusing consumer rights to make money in the first place. It should only be in certain circumstances that there would be prison sanctions. An administrative fine was thought to be a good idea. The Committee liked the route taken in the Consumer Protection Act, which had used the Competition Tribunal as an adjudicative forum. The Chairperson said generally criminal sanctions were preferable, the fear about administrative fines was the forums that would have to be set up. The Committee asked about the use of Magistrates’ Courts for Promotion of Access to Information Act disputes. The Committee discussed whether the Promotion of Access to Information Act was working and whether existing dispute resolution structures for refusals were being used. On the issue of whether the Committee should set up a commission-styled authority or individual person; the Committee seemed to be moving towards a collective structure. It had yet to decide whether individual commissioners would be assigned via legislation or they would decide amongst themselves. The Committee requested further information so that it could decide on whether administrative fines enforced by the Regulator or criminal sanctions enforced by the courts would be used as means of punishing perpetrators.
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