PROTECTION OF PERSONAL INFORMATION, BANK SECRECY AND DIRECTORS LIABILITY
Updated: May 18
Have you appointed an information officer… your Director’s may be personally liable!
Section 14 of the constitution of the Republic of South Africa, provides that every person has the right to privacy in order to secure this right.
Protection of Personal Information Act No.4 of 2013(POPI) came into operation in 2014. The act, inter alia provides for the institutional regulator and defines a “data subject” i.e. a person whose information is in someone else’s electronic data.
Personal information of a data subject may in prescribed instances, be processed by certain prescribed institutions. That information including biometric information, may also only be disclosed in prescribed circumstances. A data subject may even request for the removal of information, if abused by an institution.
Importantly, the act also applies to persons who disseminate personal information of one person to the public without the data subject’s consent. Consent may be given for the use of personal information either tacitly or expressly.
The personal information if made public, without consent in a manner which breaches the right to privacy or in conjunction with other material when read as a whole, could be of a defamatory nature.
Are you POPI ready!
Our view is that information technology has turned every author into a potential publisher/processor of personal information. The processing of personal information contrary to the provisions of the POPI and/or if defamatory matter has been published, becomes non-retractable and spreads its defamatory spirit worldwide. This could have an effect on the quantum of damages and is an opportunity to develop the common law of defamation.
We will certainly see a rise in complaints to the information regulator, civil claims and even criminal sanction arising for poor data administration.
We advise our clients to create proper data protection policies and appoint information officers to avoid the personal liability of directors.
Should you require assistance or advice with your POPI compliance, our practitioners are able provide you with sound advice and our assessment of your POPI readiness.
Author: Graeme Polson (Attorney) – May 2018
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