At some point, we have all had concerns regarding our personal information being collected, used, stored and given to others. We don’t always have control over who has access to our private details. The horror stories abound: identity theft, credit card skimming and large-scale security breaches exposing the personal information of thousands to anyone who may be surfing nearby. It happened to NHS Surrey, when more than 3 000 patient records were inadvertently left on old computers, which were then sold by a data destruction company engaged by NHS Surrey to wipe and destroy their old computer equipment. Closer to home, it was reported that various retailers in several shopping malls had discarded their customers’ personal information in the malls’ garbage bins. The documents which were found in the bins included complete original applications for retail accounts, copies of identity documents and cell phone contracts with signatures.
The way in which your company does business, and all of our personal information is handled, is about to change. The Protection of Personal Information Act (known fondly amongst practitioners as “POPI”) has been passed by Parliament and was signed by the president in November last year.
POPI is not the highly controversial ‘Secrecy Bill’ or Protection of State Information Bill, which was recently sent back to Parliament for reconsideration. POPI is a piece of legislation poised to protect our personal information processed by both private and public bodies (including government).
Some exceptions exist, but every person who collects, stores and otherwise modifies or uses information (i.e. processes information) is responsible under POPI and must comply with the conditions required for the lawful processing of personal information.
POPI places a number of responsibilities on the entity or ‘responsible party’ collecting and using the information, including:
- obtaining consent to process a person’s personal information;
- identifying the legitimate purpose for which information is processed and ensuring that the processing of information is relevant , adequate and not excessive in respect of that purpose
- notifying persons when their personal information is collected and the purpose for which the information is collected
- installing security measures to protect the integrity of the information
- where a security compromise occurs, notifying the regulator and the data subject of that breach and possible consequences of the security compromise
- ensuring, by a written agreement, that any third-party operator which processes personal information for the responsible party establishes and maintains the security measure referred to in POPI
- destroying or deleting a record of personal information as soon as the purpose for which the information was collected runs out.
This list is by no means exhaustive, but gives some idea how far POPI extends.
POPI also enables one to request access from the responsible party holding your personal information and, unless there are other legal requirements for the responsible party to retain that information, you may request that the information be destroyed or deleted. Good news for those of us who are frustrated at receiving yet another unsolicited marketing call or concerned where the information given at security guard houses goes.
For companies, with businesses to run and budgets to meet, it also means that systems and procedures need to be put in place to deal with these data requests, amongst the other compliance requirements of POPI. Without the appropriate measures in place, the handling of data requests for information processed on a daily basis could be an administrative nightmare: consider for a moment the company holding the financial information of thousands of credit applicants, the medical aid dealing with detailed medical histories of its members or the company handling the personal information of job applicants and employees.
A regulator is to be established to undertake a number of duties in relation to POPI, to deal with consumer complaints, monitor and enforce compliance with POPI. Heavy fines of up to R10 million or imprisonment for a period of up to 10 years may be imposed on companies and other persons who fail to adhere to the provisions of POPI. Persons affected by responsible parties unlawfully processing or otherwise disseminating their personal information may institute civil action for damages, or request the regulator to do so on their behalf.
Certain industries will, no doubt, have POPI very much in their focus, especially where personal information is managed in large volumes, for instance, the health care, insurance, financial and banking, retail, telecommunications industries. This does not mean that companies operating outside of information-intensive industries can choose to ignore POPI. Every company falls within the net cast by POPI by dealing with personal information at some level – at the very least, the personal information of its staff and prospective employees as part of a company’s Human Resources function.
It may well be that a person can never get through life without the exchange of personal information, but one can expect that personal information be protected and a forum will exist to ensure that private and public entities don’t abuse your personal information. At the end of it all, whether you consider POPI to be a positive addition to the consumer’s quiver or yet another administrative hindrance to running your business, it’s all about POPI readiness, and the time is ripe to heed the famous scout motto and ’be prepared’.
By Nikki Pennel
KPMG, Corporate Law Advisory Practice
Nikki Pennel is a senior manager in the Corporate Law Advisory Practice at KPMG, and focuses on data protection and the impact of POPI on business.
KPMG has a multidisciplinary team, specialising in assisting clients with the legal, organisational and technological implementation of POPI.