Personal information and the POPI Act

The Protection of Personal Information Act (POPI Act) is South Africa’s equivalent of the European Union’s Data Protection directive. It has far-reaching implications for anyone that receives, uses, possesses or disseminates personal information that is related to someone (or something else). This law is not about protecting state secrets. It isn’t designed to enable state censorship by criminalizing the publication of information that is in the public interest. POPI exists to protect the rights, particularly the right to privacy, of every individual and organization in South Africa, and by international standards it is remarkably progressive.

Privacy and the Law

The legal framework

The South African legal system is unique. It, like our country, has undergone numerous changes since the 1650’s when the Dutch first settled in the Cape. The basis of our legal system has its roots in Roman-Dutch law, a blend of indigenous Dutch customary law and Roman law (which can be traced back to the times of the Roman Empire). Towards the late 1700’s the British Empire had exerted dominance in Southern Africa and with British occupation came English Law. Although English was adopted as the language of the Courts and many legal principles and procedures were adopted from English law, the Roman-Dutch law was retained and is now common law. Besides Roman-Dutch and English legal influences, our own Indigenous and Customary laws are recognized and legally binding as long as they are in consonance with the South African Constitution. In addition, our laws are continuously being augmented by statutes (which are Acts promulgated by the national or provincial Legislatures), international treaties (where those agreements are in accordance with our constitution) and judicial decisions. The Constitution of South Africa, which was enacted by Parliament in December 1996, is the supreme law of the land in that any law or practice that is inconsistent with the Constitution is invalid.

Privacy as a Right

Privacy is a right that is afforded protection under South African common law and it is also entrenched in our constitution (specifically, section 14). Although the right to privacy is recognized as a fundamental human right, it is not an absolute right and it may be limited by a law of general application. Any limitation, however, must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. Certain competing interests, such as the maintenance of law and order or public safety, would take precedence when considering personal privacy and the protection of personal information, but this is generally accepted as reasonable and justified in any free society around the world. Where the concerns of free societies has been brewing is with regard to the use of personal information for other, less justifiable purposes. The vast volume of information that is being collected about individuals, businesses or groups and their day-to-day activities, communications and interactions, can be used and abused for commercial or criminal activity. POPI seeks to address those concerns.

Personal Information and the Investigation Industry

There’s no doubt that private investigators will be impacted by POPI. After all, most of the work that private investigators do involves obtaining information about individuals, organizations and businesses – information that is quite often personal in nature or that involves the identification, profiling and reporting on the activities and intentions of people or groups. This type of information is usually sought from a private investigator because it is not readily available to the public or because it requires specific knowledge or skills to obtain discreetly (without alerting the person or group in question).

Does the POPI Act outlaw Private Investigators?

jointly severally liable to protect personal information
Does the existence of legislation like POPI now mean that an investigator is no longer able to provide the services of a traditional private investigator without breaking the law? No. POPI doesn’t prohibit the activities of a private investigator. It doesn’t forbid the collection or use of personal information either. What it does is introduces a new set of rules that govern how personal information may be collected, stored, processed, used and destroyed. It also establishes monitoring and enforcement mechanisms, it introduces stiffer penalties for non-compliance and more.

One aspect of particular concern is that all players in the information chain share responsibility with the person or entity with which they’ve transacted. There can be multiple players – many of whom have never had contact or would even know of the existence of the other. Here’s an example. Our customer, a law firm, is representing their client in maintenance proceedings, and they require a background investigation on the ex-husband to determine whether he is concealing his assets in order to avoid paying maintenance. On our side, there would be at least three people involved – usually more: the investigator or case manager, a researcher or analyst, the customer services representative that liaises with the customer and then the staff that compile reports, handle billing and other administrative functions. Our suppliers (the sources of our information) could number anything from 5-50. On the customer’s side, there would be admin clerks, the client, the opposing counsel, the target person, the attorneys, and then court officials. This article is being rewritten by the author as there have been recent developments with regard to the Act and our industry

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