Author: Accessible Law

ACT

To promote the protection of personal information processed by public and private bodies; to introduce certain conditions so as to establish minimum requirements for the processing of personal information; to provide for the establishment of an Information Regulator to exercise certain powers and to perform certain duties and functions in terms of this Act and the Promotion of Access to Information Act, 2000; to provide for the issuing of codes of conduct; to provide for the rights of persons regarding unsolicited electronic communications and automated decision making; to regulate the flow of personal information across the borders of the Republic; and to provide for matters connected therewith.

PREAMBLE

RECOGNISING THAT—

  • section 14 of the Constitution of the Republic of South Africa, 1996, provides that everyone has the right to privacy;
  • the right to privacy includes a right to protection against the unlawful collection, retention, dissemination and use of personal information;
  • the State must respect, protect, promote and fulfil the rights in the Bill of Rights;

AND BEARING IN MIND THAT—

  • consonant with the constitutional values of democracy and openness, the need for economic and social progress, within the framework of the information society, requires the removal of unnecessary impediments to the free flow of information, including personal information;

AND IN ORDER TO—

  • regulate, in harmony with international standards, the processing of personal information by public and private bodies in a manner that gives effect to the right to privacy subject to justifiable limitations that are aimed at protecting other rights and important interests,

PARLIAMENT of the Republic of South Africa therefore enacts, as follows:—

Section 1 Definitions

In this Act, unless the context indicates otherwise —

‘‘biometrics’’ means a technique of personal identification that is based on physical, physiological or behavioural characterisation including blood typing, fingerprinting, DNA analysis, retinal scanning and voice recognition;
‘‘child’’ means a natural person under the age of 18 years who is not legally competent, without the assistance of a competent person, to take any action or decision in respect of any matter concerning him- or herself;
‘‘code of conduct’’ means a code of conduct issued in terms of Chapter 7;
‘‘competent person’’ means any person who is legally competent to consent to any action or decision being taken in respect of any matter concerning a child;
‘‘consent’’ means any voluntary, specific and informed expression of will in terms of which permission is given for the processing of personal information;
‘‘Constitution’’ means the Constitution of the Republic of South Africa, 1996;
‘‘data subject’’ means the person to whom personal information relates;
‘‘de-identify’’, in relation to personal information of a data subject, means to delete any information that—
(a) identifies the data subject;
(b) can be used or manipulated by a reasonably foreseeable method to identify the data subject; or
(c) can be linked by a reasonably foreseeable method to other information that identifies the data subject,
and ‘‘de-identified’’ has a corresponding meaning;
‘‘direct marketing’’ means to approach a data subject, either in person or by mail or electronic communication, for the direct or indirect purpose of –
(a) promoting or offering to supply, in the ordinary course of business, any goods or services to the data subject; or
(b) requesting the data subject to make a donation of any kind for any reason;
‘‘electronic communication’’ means any text, voice, sound or image message sent over an electronic communications network which is stored in the network or in the recipient’s terminal equipment until it is collected by the recipient;
‘‘enforcement notice’’ means a notice issued in terms of section 95;
‘‘filing system’’ means any structured set of personal information, whether centralised, decentralised or dispersed on a functional or geographical basis, which is accessible according to specific criteria;
‘‘information matching programme’’ means the comparison, whether manually or by means of any electronic or other device, of any document that contains personal information about ten or more data subjects with one or more documents that contain personal information of ten or more data subjects, for the purpose of producing or verifying information that may be used for the purpose of taking any action in regard to an identifiable data subject;
‘‘information officer’’ of, or in relation to, a—
(a) public body means an information officer or deputy information officer as contemplated in terms of section 1 or 17; or
(b) private body means the head of a private body as contemplated in section 1, of the Promotion of Access to Information Act;
‘‘Minister’’ means the Cabinet member responsible for the administration of justice;
‘‘operator’’ means a person who processes personal information for a responsible party in terms of a contract or mandate, without coming under the direct authority of that party;
‘‘person’’ means a natural person or a juristic person;
‘‘personal information’’ means information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to—
(a) information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;
(b) information relating to the education or the medical, financial, criminal or employment history of the person;
(c) any identifying number, symbol, e-mail address, physical address, telephone number, location information, online identifier or other particular assignment to the person;
(d) the biometric information of the person;
(e) the personal opinions, views or preferences of the person;
(f) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;
(g) the views or opinions of another individual about the person; and
(h) the name of the person if it appears with other personal information relating to the person or if the disclosure of the name itself would reveal information about the person;
‘‘prescribed’’ means prescribed by regulation or by a code of conduct;
‘‘private body’’ means—
(a) a natural person who carries or has carried on any trade, business or
profession, but only in such capacity;
(b) a partnership which carries or has carried on any trade, business or profession; or
(c) any former or existing juristic person, but excludes a public body;
‘‘processing’’ means any operation or activity or any set of operations, whether or not by automatic means, concerning personal information, including—
(a) the collection, receipt, recording, organisation, collation, storage, updating or modification, retrieval, alteration, consultation or use;
(b) dissemination by means of transmission, distribution or making available in any other form; or
(c) merging, linking, as well as restriction, degradation, erasure or destruction of information;
‘‘professional legal adviser’’ means any legally qualified person, whether in private practice or not, who lawfully provides a client, at his or her or its request, with independent, confidential legal advice;
‘‘Promotion of Access to Information Act’’ means the Promotion of Access to Information Act, 2000 (Act No. 2 of 2000);
‘‘public body’’ means—
(a) any department of state or administration in the national or provincial sphere of government or any municipality in the local sphere of government; or
(b) any other functionary or institution when—
(i) exercising a power or performing a duty in terms of the Constitution or a provincial constitution; or
(ii) exercising a public power or performing a public function in terms of any
legislation;
‘‘public record’’ means a record that is accessible in the public domain and which is in the possession of or under the control of a public body, whether or not it was created by that public body;
‘‘record’’ means any recorded information—
(a) regardless of form or medium, including any of the following:
(i) Writing on any material;
(ii) information produced, recorded or stored by means of any tape-recorder, computer equipment, whether hardware or software or both, or other device, and any material subsequently derived from information so produced, recorded or stored;
(iii) label, marking or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means;
(iv) book, map, plan, graph or drawing;
(v) photograph, film, negative, tape or other device in which one or more visual images are embodied so as to be capable, with or without the aid of some other equipment, of being reproduced;
(b) in the possession or under the control of a responsible party;
(c) whether or not it was created by a responsible party; and
(d) regardless of when it came into existence;
‘‘Regulator’’ means the Information Regulator established in terms of section 39;
‘‘re-identify’’, in relation to personal information of a data subject, means to resurrect any information that has been de-identified, that—
(a) identifies the data subject;
(b) can be used or manipulated by a reasonably foreseeable method to identify the data subject; or
(c) can be linked by a reasonably foreseeable method to other information that identifies the data subject, and ‘‘re-identified’’ has a corresponding meaning;
‘‘Republic’’ means the Republic of South Africa;
‘‘responsible party’’means a public or private body or any other person which, alone or in conjunction with others, determines the purpose of and means for processing personal information;
‘‘restriction’’ means to withhold from circulation, use or publication any personal information that forms part of a filing system, but not to delete or destroy such information;
‘‘special personal information’’ means personal information as referred to in section 26;
‘‘this Act’’ includes any regulation or code of conduct made under this Act; and
‘‘unique identifier’’ means any identifier that is assigned to a data subject and is used by a responsible party for the purposes of the operations of that responsible party and that uniquely identifies that data subject in relation to that responsible party.

Section 2 Purpose of Act

The purpose of this Act is to —

  1. give effect to the constitutional right to privacy, by safeguarding personal information when processed by a responsible party, subject to justifiable limitations that are aimed at—
    1. balancing the right to privacy against other rights, particularly the right of access to information; and
    2. protecting important interests, including the free flow of information within the Republic and across international borders;
  2. 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;
  3. provide persons with rights and remedies to protect their personal information from processing that is not in accordance with this Act; and
  4. establish voluntary and compulsory measures, including the establishment of an Information Regulator, to ensure respect for and to promote, enforce and fulfil the rights protected by this Act.

Section 3 Application and interpretation of Act


  1. This Act applies to the processing of personal information—
    1. entered in a record by or for a responsible party by making use of automated or non-automated means: Provided that when the recorded personal information is processed by non-automated means, it forms part of a filing system or is intended to form part thereof; and
    2. where the responsible party is—
      1. domiciled in the Republic; or
      2. not domiciled in the Republic, but makes use of automated or non-automated means in the Republic, unless those means are used only to forward personal information through the Republic.
    1. This Act applies, subject to paragraph (b), to the exclusion of any provision of any other legislation that regulates the processing of personal information and that is materially inconsistent with an object, or a specific provision, of this Act.
    2. If any other legislation provides for conditions for the lawful processing of personal information that are more extensive than those set out in Chapter 3, the extensive conditions prevail.
  3. This Act must be interpreted in a manner that—
    1. gives effect to the purpose of the Act set out in section 2; and
    2. does not prevent any public or private body from exercising or performing its powers, duties and functions in terms of the law as far as such powers, duties and functions relate to the processing of personal information and such processing is in accordance with this Act or any other legislation, as referred to in subsection (2), that regulates the processing of personal information.
  4. ‘‘Automated means’’, for the purposes of this section, means any equipment capable of operating automatically in response to instructions given for the purpose of processing information.

Section 4 Lawful processing of personal information

  1. The conditions for the lawful processing of personal information by or for a responsible party are the following:
    1. ‘‘Accountability’’, as referred to in section 8;
    2. ‘‘Processing limitation’’, as referred to in sections 9 to 12;
    3. ‘‘Purpose specification’’, as referred to in sections 13 and 14;
    4. ‘‘Further processing limitation’’, as referred to in section 15;
    5. ‘‘Information quality’’, as referred to in section 16;
    6. ‘‘Openness’’, as referred to in sections 17 and 18;
    7. ‘‘Security safeguards’’, as referred to in sections 19 to 22; and
    8. ‘‘Data subject participation’’, as referred to in sections 23 to 25.
  2. The conditions, as referred to in subsection (1), are not applicable to the processing of personal information to the extent that such processing is—
    1. excluded, in terms of section 6 or 7, from the operation of this Act; or
    2. exempted in terms of section 37 or 38, from one or more of the conditions concerned in relation to such processing.
  3. The processing of the special personal information of a data subject is prohibited in terms of section 26, unless the—
    1. provisions of sections 27 to 33 are applicable; or
    2. Regulator has granted an authorisation in terms of section 27(2), in which case, subject to section 37 or 38, the conditions for the lawful processing of personal information as referred to in Chapter 3 must be complied with.
  4. The processing of the personal information of a child is prohibited in terms of section 34, unless the—
    1. provisions of section 35(1) are applicable; or
    2. Regulator has granted an authorisation in terms of section 35(2), in which case, subject to section 37, the conditions for the lawful processing of personal information as referred to in Chapter 3 must be complied with.
  5. The processing of the special personal information of a child is prohibited in terms of sections 26 and 34 unless the provisions of sections 27 and 35 are applicable in which case, subject to section 37, the conditions for the lawful processing of personal information as referred to in Chapter 3 must be complied with.
  6. The conditions for the lawful processing of personal information by or for a responsible party for the purpose of direct marketing by any means are reflected in Chapter 3, read with section 69 insofar as that section relates to direct marketing by means of unsolicited electronic communications.
  7. Sections 60 to 68 provide for the development, in appropriate circumstances, of codes of conduct for purposes of clarifying how the conditions referred to in subsection (1), subject to any exemptions which may have been granted in terms of section 37, are to be applied, or are to be complied with within a particular sector.

Section 5 Rights of data subjects

  1. A data subject has the right to have his, her or its personal information processed in accordance with the conditions for the lawful processing of personal information as referred to in Chapter 3, including the right—
    1. to be notified that—
      1. personal information about him, her or it is being collected as provided for in terms of section 18; or
      2. his, her or its personal information has been accessed or acquired by an unauthorised person as provided for in terms of section 22;
    2. to establish whether a responsible party holds personal information of that data subject and to request access to his, her or its personal information as provided for in terms of section 23;
    3. to request, where necessary, the correction, destruction or deletion of his, her or its personal information as provided for in terms of section 24;
    4. to object, on reasonable grounds relating to his, her or its particular situation to the processing of his, her or its personal information as provided for in terms of section 11(3)(a);
    5. to object to the processing of his, her or its personal information—
      1. at any time for purposes of direct marketing in terms of section 11(3)(b); or
      2. in terms of section 69(3)(c);
    6. not to have his, her or its personal information processed for purposes of direct marketing by means of unsolicited electronic communications except as referred to in section 69(1);
    7. not to be subject, under certain circumstances, to a decision which is based solely on the basis of the automated processing of his, her or its personal information intended to provide a profile of such person as provided for in terms of section 71;
    8. to submit a complaint to the Regulator regarding the alleged interference with the protection of the personal information of any data subject or to submit a complaint to the Regulator in respect of a determination of an adjudicator as provided for in terms of section 74; and
    9. to institute civil proceedings regarding the alleged interference with the protection of his, her or its personal information as provided for in section 99.

Section 6 Exclusions

  1. (1) This Act does not apply to the processing of personal information—
    1. in the course of a purely personal or household activity;
    2. that has been de-identified to the extent that it cannot be re-identified again;
    3. by or on behalf of a public body—
      1. which involves national security, including activities that are aimed at assisting in the identification of the financing of terrorist and related activities, defence or public safety; or
      2. the purpose of which is the prevention, detection, including assistance in the identification of the proceeds of unlawful activities and the combating of money laundering activities, investigation or proof of offences, the prosecution of offenders or the execution of sentences or security measures, to the extent that adequate safeguards have been established in legislation for the protection of such personal information;
    4. by the Cabinet and its committees or the Executive Council of a province; or
    5. relating to the judicial functions of a court referred to in section 166 of the Constitution.
  2. ‘‘Terrorist and related activities’’, for purposes of subsection (1)(c), means those activities referred to in section 4 of the Protection of Constitutional Democracy against Terrorist and Related Activities Act, 2004 (Act No. 33 of 2004).

Section 7 Exclusion for journalistic, literary or artistic purposes

  1. This Act does not apply to the processing of personal information solely for the purpose of journalistic, literary or artistic expression to the extent that such an exclusion is necessary to reconcile, as a matter of public interest, the right to privacy with the right to freedom of expression.
  2. Where a responsible party who processes personal information for exclusively journalistic purposes is, by virtue of office, employment or profession, subject to a code of ethics that provides adequate safeguards for the protection of personal information, such code will apply to the processing concerned to the exclusion of this Act and any alleged interference with the protection of the personal information of a data subject that may arise as a result of such processing must be adjudicated as provided for in terms of that code.
  3. In the event that a dispute may arise in respect of whether adequate safeguards have been provided for in a code as required in terms of subsection (2) or not, regard may be had to—
    1. the special importance of the public interest in freedom of expression;
    2. domestic and international standards balancing the—
      1. public interest in allowing for the free flow of information to the public through the media in recognition of the right of the public to be informed; and
      2. public interest in safeguarding the protection of personal information of data subjects;
    3. the need to secure the integrity of personal information;
    4. domestic and international standards of professional integrity for journalists; and
    5. the nature and ambit of self-regulatory forms of supervision provided by the profession.