Protection of Personal Information Bill [B9B – 2009]: deliberations

Meeting report

The Chairperson said that the Committee would go through the Bill clause-by-clause and either agree or disagree however it would only be adopted today next week.

Preamble
Mr Henk Du Preez, State Law Adviser form the Department of Justice and Constitutional Development (DoJ&CD), said that there was a slight technical amendment in line four.

The Chairperson said that Mr Du Preez was referring to the Long Title.

The Committee agreed to the amendment.

Contents of Act
Mr Du Preez said that the heading of clause 69 had been changed. In the heading the words ‘direct marketing by means of unsolicited’ were added. The heading of Chapter 8 would also be amended in this manner.

Definitions
Child
Mr J Jeffery (ANC) proposed that the first definition as opposed to the option should be inserted in the Bill.

The Committee agreed.

Consent
Mr Jeffery proposed that the first option should be adopted.

The Committee agreed.

Data Bank
Mr Jeffery proposed that the option should be deleted.

The Committee agreed.

Personal Information
Mr Jeffery proposed the first option.

The Committee agreed.

Processing
Mr Jeffery proposed the first option.

The Committee agreed.

Professional Legal Adviser
Mr Jeffery proposed the first option.

The Committee agreed.

Restriction
Ms D Smuts (DA) proposed that the option of restricted be accepted and the option of blocked be rejected.

Clause 2
Mr Jeffery proposed the deletion of the option.

The Committee agreed.

Clause 4
Mr Jeffery queried the use of the word lawful in the heading as well as the provisions of the clause. Why was there a need for ‘lawful’, if the processing of information was not done lawfully than that was unlawful processing. Unlawfulness was an element of a crime however there was no crime until the Regulator issued an enforcement notice. Would it not be adequate to have the clause without the word ‘lawful’?  

Mr Du Preez said that it was a question of convention. In the Sexual Offences Act the word ‘unlawful’ was used. Strictly speaking the use of the word was not necessary for the creation of a crime however in the Bill the conditions for the lawful processing of personal information denoted conditions that had to be complied with by a responsible party in order to avoid civil liability.

Ms Ananda Louw, Researcher form the South African Law Reform Commission (SALRC) said that the wording was used in the European Union (EU) Directive as well as all other documentation.

Mr Jeffery asked what the consequences of processing information unlawfully were.

Ms Louw said that it was the consequences outlined in the Bill.

Mr Jeffery said that he withdrew his point.

Clause 5
Ms Smuts said that the option should be removed.

The Committee agreed.

Clause 6
Ms Smuts proposed that the option in clause 6(1)(a) should be deleted.

The Committee agreed.

Mr Jeffery said that the option should be deleted.

Ms Smuts said that there had to be a vote on whether to delete clause 6(1)(c)(ii) as she wanted the option to remain as opposed to the provision. It was the view of the DA that public departments should be bound to the observance and safeguard of citizen’s personal information.

Mr Jeffery said that the reason why there was the proposal of the clause remaining was that the public bodies stated therein were those that dealt with national intelligence and security, not just any public body. The clause basically exempted the Financial Intelligence Centre (FIC). It was not clear why the DA would say that the FIC should be included.

Ms Smuts proposed the deletion of clause 6(1)(c)(ii).

The Chairperson noted that two Members were in favour and the rest opposed.

Ms Smuts said that option one under clause 6(1)(d) was her proposal. The reason why it was proposed that literary and artistic expressions should be excluded outright was that journalism, literature and art were incompatible in light of the statute that was being proposed. Bona fide literary or artistic expression should be excluded.

Mr Jeffery said that some of the issues revolved around what was bona fide. Ms Smuts’ option unfortunately had to make way, the two options were around the same thing just with different wording, and this was not a big issue.

Ms Smuts agreed and said that she would not fight over this.

Clause 7
Ms Smuts moved for the removal of the option.

Mr Jeffery seconded this.

The Committee agreed.

Mr Jeffery said that there was a new issue. Clause 7 provided an exclusion for journalists subjec to a code. The issue was what happened to journalists not subject to a code such as bloggers, citizen journalists etc. There were various ways of dealing with this; the Regulator may exempt categories under clause 37. There was a new option proposed by the state law advisers in the secondary document. It was accepted that journalists not subject to a code had to be regulated by the Regulator. The second proposed option related to clause 65. The second option was more preferable in conjunction with the application of clause 40 however there would be an additional amendment to clause 37. The application of clause 37 at the moment was to a responsible party, it may be appropriate if it included a class of responsible parties.

Ms D Schäfer (DA) said that one could not have a class of responsible persons where bloggers were concerned, not all bloggers would be irresponsible. Each case would have to be determined on its own merits.

Ms Smuts said that one could not just label an individual who just “muck raked” in the individual affairs of public representatives as a journalist; it was only a fashionable term to call such persons citizen journalists. However the European Court had said the following “Activities may be classified as journalistic activities if their objective was the disclosure of information, opinions or ideas irrespective of the medium used to transmit. They are not limited to media undertakings and may be undertaken for profit making purposes.” This was one instance where a blogger or citizen journalist would qualify as a journalist. Journalism should have been excluded however this would have rendered South Africa (SA) as the first democracy to do so. Prior restraint had to be avoided; this was where a citizen journalist had to approach the Regulator for permission to publish. Option two from the drafters was appropriate and less problematic.

Ms Louw said that she was content with the provisions of clause 37 and 44. The request for exemption may include groups and it might not be necessary to make provision for groups. Requesting for an exemption could never be equated with prior restraint because one was not asking for permission to publish bur exemption from a particular condition.

Ms Smuts asked if the request was denied, how then could it not be prior restraint.

Ms Louw said that if it was denied then it may be a problem. There was a difference between interpreting the Bill and interpreting the exemptions, exceptions and authorisations. A lone blogger may interpret the Bill and decide that they were in compliance, if somebody complained then they would have to defend their conduct and that’s where the Regulator would step in and thereafter the court.

Mr S Swart (ACDP) asked why clause 7(2)(a) was being excluded, was this because it was under clause 37.

Ms Louw said that the two should be read together because clause 37 was also being amended and this included the public interest defence. Clause 7(2)(a) would be inserted under clause 37 to become clause 37(2)(f).

Mr Swart said that this made it difficult to read.

Mr Du Preez said that this was why option 2 was preferable. Clause 7 was a limited clause and if a reference to ‘codeless’ journalist was included then the ambit would be extended.

Mr Jeffery said that he preferred option two. The exemption though did look a bit like prior restraint; this however was not the intention. The concern with the proposal for clause 37 was that it would not provide for what the Committee wanted, it might be necessary to re-word it. The Committee should agree in principle with clauses 44(3) and 65 and then re-look at clause 37.

Ms Louw said that usually a code was an interpretation of the Bill and there would not ordinarily be a reason to apply for an exemption however there may be an instance where requesting an exemption may be necessary for purposes of including it in the code.

Mr Jeffery said that there was agreement; it was only the wording which was of concern.

The Chairperson confirmed that clause 37, 44 and 65 would be parked for now. Clause 7 would be referred to later as well.

Mr Jeffery said that unless there was somebody to propose an option the Committee should continue to the next clause and this would mean that the option had been rejected.

Clause 15
Mr Jeffery referred to Section 15(2) of the Promotion of Access to Information Act (PAIA) and noted that Ms Allison Tilley, Director from the Open Democracy Advice Centre (ODAC), had said that it had never been used and was not necessary and therefore clause 15(2) of the Bill should be deleted accordingly.

The Committee agreed.

Clause 26
Mr Jeffery proposed under clause 26(b) that option 4 should be selected.

The Committee agreed.

Clause 38
Mr Jeffery said that the Financial Services Board (FSB) had another stab at this. The FSB said that clause 15 was not included. If one considered clause 15(3)(c) it was clear that the South African Revenue Services (SARS) was excluded, why should the FSB not be excluded as well? Clause 15 should be included as per their request.

Ms Smuts agreed.

Clause 41
Mr Jeffery referred to clause 41(g)(ii) said that as the ANC there was support for the restriction that a member of the Regulator could not be a public servant but not the restriction of a holder of any other remunerated position under a public body should remain there.

The Committee agreed.

Clause 47
Mr Du Preez proposed that in clause 47(2)(c) the words ‘is absent for a longer period’ should be deleted.

The Committee agreed.

Mr Jeffery said that the restriction on the secondment was too tortuous. Clause 47(6) as it was currently worded was more preferable. There should however be a proviso that the secondment should not exceed 12 months.

Ms Smuts said that this was not worth being further discussed; a lovely compromise had been reached. 

Mr Jeffery moved for the amendment drafted by the state law advisers in the new draft.

Prof G Ndabandaba (ANC) seconded.

Ms Smuts and M Schäfer agreed.

The Committee agreed.

Clause 69
Mr Du Preez said that the heading should be replaced with ‘Direct Marketing by means of unsolicited electronic communications’. Clause 69(2) has been redrafted and separated into sub-paragraphs (a) and (b).

Mr Jeffery said that he was happy with the clause as amended.

The Committee agreed.

Clause 72
Mr Jeffery said that this was the clause where the FSB did not want to be held accountable. Their new proposal was not adequate in this regard.

Mr Du Preez said that there was a clear distinction between liability and accountability. The proposal from the FSB was not very clear.

Mr Swart agreed.

Clause 112
Mr Du Preez said that the drafters were worried about the Regulator creating penalties hence the proposal that clause 112(3) should be removed.

Mr Jeffry said that the Committee should park this, it would be better if the Committee as the legislative body created the crimes and not anybody else. The deletion of sub-clause 3 was appropriate.

Schedule
Item 2
Mr Jeffery said that he took the liberty to show the Open Democracy Advice Centre (ODAC) the Item and they had said that Item 2(10)(2) was too detailed and not practical. They proposed that it should be up to the Regulator as to what went into the Guide.

Ms Smuts said that most of this was already in the Promotion of Access to Information Act (PAIA).

Ms Tilley said that the current guide produced by the South African Human Rights Commission (SAHRC) was a clear guide which was brief and even though it did not deal with most of the issues under this Item it was still very weighty. The manuals for specific private and public institutions contained information such as telephone numbers and fax numbers etc, why should the Regulator be expected to deal with all of this when the Government Communications and Information System (GCIS) was in the business of updating details.

Ms Smuts said that this flowed logically from the Committee’s decision to drop the notification requirement. What was so bad about collecting the contact details of every Information Officer?

The Chairperson said that they were not definitive or complete.

Ms Smuts asked what GCIS’ function was.

Ms Tilley said that GCIS kept and maintained a directory of all government institutions.

Mr Jeffery said that it would seem like the offending sections were (b) and (c). The rest of the provisions were okay.

The Chairperson asked if (b) and (c) should be removed.

The Committee agreed to Item 2 as amended including the Guide being made available.

Item 11
Mr Swart asked what new obligation was being placed on private bodies.

Mr Du Preez said that many of the private bodies had an exemption which was granted by the Minister for complying with the requirement for the submission of manuals.

Mr Swart said that if there were economic consequences then these had to be considered. Somebody was going to make a lot of money out of advising small businesses. The Minister of Finance had said from day to day that doing business in SA should be made easier and not difficult.

Ms Smuts said that the counter argument would be what the cost was of incursions into the privacy of consumers. The mischief that was being cured was the abuse of people’s personal information.

Mr Jeffery said that the main issue was the requirement that a hard copy manual had to be sent to the SAHRC and this had to go. This has been replaced with sub 3 at the bottom of page 66. The exemption had not been considered and this should remain.

Dr Francis Cronje, Adjudicator for the Wireless Application Service Provider’s Association (WASPA), and Internet Service Provider’s Association of South Africa (ISPA) said that he was concerned that if the exemption was left as it was then certain people would be exempt from the notice requirement in the Bill.

Ms Louw said that there was a difference between exempting the small business from complying with the Bill and exempting them from just keeping their information.

Ms Tilley clarified that the discussion had to do with an exemption from the production of a manual as opposed to exemption from the application of the Bill. There were categories of businesses that were sufficiently small and should be exempted.

Ms Smuts said that a big step was taken when the notification requirement was done away with. There were small businesses such as spaza shops that would have to be exempt however little electronic communication businesses should not be exempt. The Committee cannot deal with such a big question now.

Mr Jeffery said that this was fine and agreed with Ms Smuts.

Mr Swart also agreed.

Chapter 1A
Mr Jeffery said that the ANC proposed that option two should be inserted.

The Committee agreed.

77J
Mr Jeffery said that the ANC proposed that option two should be inserted.

The Committee agreed.

78
Mr Jeffery said that the option should be inserted.

The Committee agreed.

Ms Smuts said that she was raising a new matter. Should the Committee not amend the Public Protector Act? The situation was that the Public Protector (PP) was tasked with taking on public complaints on access to information. Now the Regulator was going to have many powers including dealing with complaints. The current PP had expressed that she was more than willing to have this load taken off.

The Chairperson asked the drafters to look into this.

Mr Jeffery asked the Chairperson to double check the PP’s position on this.

The Chairperson agreed and said that the Committee would vote on the Bill next week.

The meeting was adjourned.