Personal information leaks: Understanding your legal rights
When a person fails to adhere to the new rules, they could suffer significant penalties
South Africans are vulnerable to the non-consensual processing of their personal information
But when your personal information has been leaked, what legal redress is available to you?
Under South Africa’s current laws, people are often left without a practical way to enforce their rights.
However, once the long-delayed Protection of Personal Information Act (POPI) comes into force, people in South Africa (including companies) will finally have a practical tool at their disposal to protect their personal information.
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The current situation
Karl Blom of Webber Wentzel Attorneys, says that South Africa’s Constitution and its common law recognise the right to privacy for all people (including corporations).
As a result, people who violate another person’s right of privacy can be held liable.
Privacy (in these instances) typically refers to the right of person to choose, within reason, the information they wish to keep hidden from the public.
A person’s right to privacy is typically infringed in one of two ways:
• when a person deliberately intrudes upon another’s personal affairs without permission or justification; and/or
• when a person deliberately shares another’s personal information without permission or justification.
The future – POPI
Under POPI, the collection, processing and publication of personal information will be stringently regulated, including the manner in which personal information must be safeguarded.
This is because POPI prescribes specific requirements as to how personal information may be stored and transferred (among other things).
When a person fails to adhere to these new rules, they could suffer significant penalties.
POPI does not require that personal information be made public in order for liability to arise.
Similarly, a person does not have to intentionally breach another’s right to privacy in order to be liable – POPI imposes liability in the event of either an intentional or negligent non-compliance.
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Watch out
The penalties for non-compliance with POPI are severe.
In particular, a person that fail to safely secure and/or process personal information can be held liable for a fine of up to ZAR10 million or even face imprisonment.
However, the majority of POPI’s provisions are not currently in force – its commencement having been delayed for a number of years.
Until such time that POPI becomes fully effective, people who have suffered from the exposure of their person information in the recent data leak are left with limited recourse.
South African’s may take some solace in the fact that, once POPI is in effect, the consequences for people recklessly leaking our information will become very real.
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