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The Protection of Personal Information Bill

The Protection of Personal Information Bill. Presentation for SASLAW seminar: 15 March 2012 Iain Currie University of the Witwatersrand. Introduction to the Bill Current status of the Bill The difference the Bill will make to the law of privacy

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The Protection of Personal Information Bill

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  1. The Protection of Personal Information Bill Presentation for SASLAW seminar: 15 March 2012 Iain Currie University of the Witwatersrand

  2. Introduction to the Bill Current status of the Bill The difference the Bill will make to the law of privacy The difference the Bill will make to labour law (scattered speculations)

  3. ISG -- Privacy SIG Russell.opland@za.pwc.com

  4. What is the Bill intended to achieve?

  5. Section 2 (Purposes) (1)The purpose of this Act is to— (a) give effect to the constitutional right to privacy, by safeguarding personal information when processed by a responsible party, subject to justifiable limitations….

  6. Protection of personal information = Data protection ≠ privacy protection

  7. At common law, the breach of a person's right to privacy constitutes an iniuria.

  8. It occurs when there is an unlawful and intentional acquaintance with private facts by outsiders contrary to the determination and will of the person whose right is infringed, such acquaintance taking place by an intrusion or by disclosure. See J Neethling et al Neethling’s Law of Personality 2ed (2005) chapter 8

  9. It occurs when there is an unlawful and intentionalacquaintance with private facts by outsiders contrary to the determination and will of the person whose right is infringed, such acquaintance taking place by an intrusion or by disclosure. See J Neethling et al Neethling’s Law of Personality 2ed (2005) chapter 8

  10. Intention is required to establish a breach of privacy.

  11. In NM v De Lille the Constitutional Court declined an invitation to develop the . . . Paralleling the distribution of the onus in defamation actions: Neethling et al 253, citing Kidson v SA Associated Newspapers 1957 (3) SA 461 (W) 468—9. This means ‘that the perpetrator must have directed his will to violating the privacy of the prejudiced party . . . knowing that such violation would (possibly) be wrongful’ Neethling et al 252.

  12. Examples See the “Privacy library” at http://www.worldlii.org (Searchable database of decisions of privacy commissioners)

  13. Example 1: breach of privacy? A Municipality discloses information about the complainant’s HIV status to a home nursing company providing services to his mother. [Ontario Information and Privacy Commissioner]

  14. Example 2 B flees her abusive ex-husband and moves to a new address, unknown even to her parents. She tells a government agency of her new address (so that she can continue receiving social security benefits). Ex-H visits the agency and obtained the new address from a desk clerk via a routine enquiry. [Victoria Privacy Commissioner (2003)]

  15. Example 3 A bank conducts a marketing campaign in a bookshop on a Saturday to solicit credit card applications. At the end of the campaign, the bank staff put all the application forms together with applicants' identity card copies in a briefcase and carry them home before returning to office the next Monday. Unfortunately, the bank staff left the briefcase in a public light bus and lost all the documents. [Hong Kong Privacy Commissioner]

  16. Example 4: data mining

  17. Example 6: Targeted advertising

  18. http://www.nytimes.com/2010/03/04/technology/04facebook.html?emhttp://www.nytimes.com/2010/03/04/technology/04facebook.html?em

  19. Privacy [for purposes of the common-law right] means ‘a condition of human life characterized by seclusion from the public and publicity. This condition embraces all those personal facts which the person concerned has determined to be excluded from the knowledge of outsiders and in respect of which he or she has the will that they be kept private’. J NeethlingPersoonlikheidsreg (1979) and National Media Ltd v Jooste 1996 (3) SA 262 (A)

  20. Privacy [for purposes of the common-law right] means ‘a condition of human life characterized by seclusion from the public and publicity. This condition embraces all those personal facts which the person concerned has determined to be excluded from the knowledge of outsiders and in respect of which he or she has the will that they be kept private’. J NeethlingPersoonlikheidsreg (1979) and National Media Ltd v Jooste 1996 (3) SA 262 (A)

  21. Dataveillance Roger Clarke "the systematic monitoring of people's actions or communications through the application of information technology". Clarke R. (1988) 'Information Technology and Dataveillance' Commun. ACM 31,5 (May 1988)

  22. Example 7: online incaution (aka over-sharing) Senior vice-president Marketing and Sales at the 2011 Xmas party

  23. 'One college student lost a shot at a summer internship when the company’s president saw that his Facebook profile listed “smokin’ blunts” as an interest. Disclosure is hardly limited to students, though. Someone blackmailed Miss New Jersey 2007 by sending racy pictures from a private Facebook album to pageant officials. Or consider Sandra Soroka, who posted a Facebook status update saying that she was “letting Will know it’s officially over via Facebook status,” only to see the story flood the Internet.' James Grimmelmann‘Saving Facebook’ (2009) 94 Iowa LR 1137.

  24. What difference will the Bill make?

  25. Section 2 (purposes) …(b) regulate the manner in which personal information may be processed, by establishing conditions, in harmony with international standards, that prescribe the minimum threshold requirements for the lawful processing of personal information; (c) provide persons with rights and remedies to protect their personal information from processing that is not in accordance with this Act; and (d) establish voluntary and compulsory measures, including an Information Regulator, to ensure respect for and to promote, enforce and fulfil the rights protected by this Act.

  26. So, • Regulate the processing of personal information by establishing minimum conditions. • Provide statutory rights and remedies for breach of the conditions. • Establish a regulator.

  27. Processing: See definition of "processing" Section 1, p 8

  28. See definition of “personal information” Section 1, p 8

  29. Application of Act Section 3(1) – (3), p 10

  30. Automated or non-automated forming part of a filing system

  31. Guy TillimCourt records, Lubumbashi, DR Congo, 2007

  32. Guy TillimTyping pool, Town Hall, Likasi, DR Congo, 2007

  33. Hard disk drive (ca 1956) Capacity 5MB Hint: picture was  taken in 1956...It's a hard disk drive  back in 1956... with 5 MB of storage.  In September 1956 IBM launched the 305 RAMAC, the  first 'SUPER' computer with a hard disk drive (HDD). The HDD  weighed over a ton and stored a 'whopping' 5  MB of data.Do you appreciate your  16 GB memory stick a little more now?

  34. Pieter Hugo Yakubu Al Hasan, Agbogbloshie Market, Accra, Ghana 2009

  35. Section 6 Exclusions

  36. Section 4 Rights of data subjects

  37. Section 5 Conditions for lawful processing

  38. The conditions are high-level, general and abstract

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