Many organisations are taking the stance that while the Protection of Personal Information Act (POPIA) is not fully enacted, there is no need for compliance. POPIA compliance is essential as there are currently serious risks associated with non-compliance with the Act. One such consequence is reputational damage which may entail loss of revenue, clients and service providers and increased business costs.

Earlier this year MiWay Insurance came under fire when a recorded MiWay conversation with Zulu King Goodwill Zwelithini leaked to the public. The Zulu King laid a complaint and the Information Regulator issued a media statement on 12 February 2018 stating that “despite certain sections of POPIA not yet operative, the Regulator intended to proactively engage MiWay with regards to the processes and measures they have put in place to comply with the conditions for lawful processing of personal information as prescribed in POPIA”. During 2018 the Information Regulator similarly engaged with Facebook, Aggregated Payment System (Pty) Ltd and Liberty Holdings (Pty) Ltd after major data breaches involving ordinary South African’s personal information came to light.

Nothwithstanding the reputational damage these organisations may have incurred, once POPIA is fully enacted organisations face penalties of up to R10 million and/or imprisonment for a period not exceeding 10 years.

DIRECT MARKETING

A big concern for organisations is the effect POPIA will have on direct marketing. Under Section 69 of POPIA a potential customer (“prospect”) must consent before electronic direct marketing can take place. However, in order to obtain such consent a direct marketer may contact a prospect once only. If they withhold consent, the direct marketer may not contact them again. This applies unless that prospect is an existing customer who gave their personal information to the supplier in the context of a sale for the purpose of direct marketing and “has been given a reasonable opportunity to object, free of charge and in a manner free of unnecessary formality”.

Customers have the right to complain to the Information Regulator should they believe organisations are not complying with POPIA. To date more than two hundred complaints have been received. Organisations should bring their direct marketing practices in line with Section 69 as soon as possible to avoid investigations and legal sanctions. Moreover, POPIA empowers customers to institute legal proceeds against non-compliant organisations directly as an alternative to lodging complaints.

DATA BREACH

Earlier this year the Facebook data breach made headlines worldwide. It is reported that the personal information of 59 777 South African users was potentially shared with the data firm called Cambridge Analytica. To investigate the alleged breach the Information Regulator convened a meeting of various government institutions. These institutions included the South African Police Service, specifically the HAWKS, the National Prosecuting Authority (NPA), the Department of Rural Development, the National Credit Regulator and the Association of Credit Bureaus. The meeting agreed to establish a Task Team comprising of the representatives of the abovementioned institutions to ensure a multi-disciplinary approach to the investigation.

Contact SwiftTechLaw here to ensure that you are ready for when the Information Regulator comes knocking.

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Information Privacy Regulations Finalised Recently

It is no secret that South Africa’s Protection of Personal Information Act (“POPIA”) regulates the processing of personal information domestically. As legislation has increasingly evolved to tackle a cross-border challenge, POPIA’s provisions are aligned to stringent international standards. POPIA is structured in two instruments, the POPI Act and POPIA Regulations. The latter providing supplementary details of what is required to ensure legal compliance. On 14 December 2018, POPIA’s final version Regulations were promulgated affecting the implementation of SA information privacy law in several respects.

Enforcement Date

Certain provisions of POPIA are already in force and have been since 2018. Furthermore the Information Regulator has already been knocking on the doors of companies who have been complained about by data subjects. However, the application of other legal obligations and restrictions only take effect on a date to be determined by the legislature. One of the issues causing the delay of full POPIA enforceability is the promulgation of its Regulations. The promulgation of the latter in December brings complete legal enforceability under POPIA one step closer.

Stricter Regulation of Direct Marketing

Section 69 of POPIA requires direct marketers to obtain consent from data subjects in order to lawfully conduct campaigns targeting them. Failure to do so is an offence which carries heavy fines and penalties. The Regulations impose details regarding how such consent must be obtained. Namely, direct marketers are required to obtain a signed form from the data subject before electronic direct marketing can occur. Depending on how the regulation is implemented in practice, imposing this obligation could create a significant challenge to the direct marketing industry. Although stringent regulation could appear attractive to consumers, they should be reminded that the direct marketing industry is a significant employer and job creator in South Africa. Should the industry down-size, the limitations prescribed in the Regulations could become a poisoned chalice. Direct marketers should familiarise themselves with POPIA Regulations and ensure their organisation is streamlined to comply with POPIA without damaging revenue streams.

The responsibilities of the Information Officer

POPIA’s Regulations also contain further detail on Information Officers. Organisations are required to appoint an individual responsible for ensuring information privacy legal compliance. Much like a company secretary the Information Officer will be involved with legal implementing within their organisation. Amongst other requirements, this involves creating a compliance framework, conducting an information privacy impact assessment and creating a manual which outlines their organisation’s information privacy and security policies. While this seems daunting in practice, the responsibilities of an organisation’s Information Officer will most likely be supplemented by technology and privacy attorneys.

Elevated awareness of importance

As incidents ranging from Facebook’s data abuse to COLLECTION#1 continue to make headlines, the importance of legal regulation will escalate further. The Promulgation of POPIA Regulations are an encouraging step in the right direction as information privacy continues to be of domestic and global importance.

If you have not taken the necessary steps to comply with POPIA, contact SwiftTechLaw here.

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