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Chapter: 

I. Legal Framework

Constitutional privacy framework

Section 14 of the South African Constitution of 1996 states, "Everyone has the right to privacy, which includes the right not to have - (a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed." Section 32 states, "(1) Everyone has the right of access to - (a) any information held by the state, and; (b) any information that is held by another person and that is required for the exercise or protection of any rights; (2) National legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state."1

The South African Constitutional Court has delivered several judgments on the constitutional right to privacy. These deal with legislation prohibiting the possession of indecent or obscene photographs2 and child pornography,3 searches and seizures4 and the criminalization of prostitution.5 The court's interpretation of the right is a mixture of US and European jurisprudence. On the one hand, the court has emphasized that the roots of the right lie in the value of human dignity.6 On the other hand, the court has defined the right, along US lines, as protecting an actual (or subjective) expectation of privacy that society is prepared to recognize as reasonable.7

The constitutional right to privacy also has application in private litigation.8 Recent decisions have considered the effect of the right in litigation seeking to prevent the publication of intimate photographs of a quasi-celebrity,9 an action for damages to compensate for publication of an inaccurate report that a person had been arrested for terrorism10 and the filming of the activities of members of a helicopter club by a competitor seeking evidence of contraventions of aviation safety regulations.11 There is currently no general statutory protection of privacy or general data protection legislation in South Africa.

Data protection framework

In early 2000, the South African Law Reform Commission was requested by Parliament to investigate the introduction of privacy and data protection legislation. The request was made at the time that Parliament was considering the Promotion of Access to Information Act (the Act). Drafts of the Act contained a chapter proposing the regulation of access to, and dissemination of, personal information held in private and public "data banks." Parliament took the view that these matters would be better regulated by a comprehensive purpose-specific data protection statute and the chapter was removed from the Access to Information Act as finally enacted. The Law Reform Commission (the Commission), having researched the matter, then published an Issue Paper on Privacy and Data Protection in August 2003.12 The Issue Paper made a number of preliminary recommendations that closely tracked the provisions of the European Union (EU) Data Protection Directive. This is to be expected since the Directive, by requiring a basic level of data protection in countries doing business with the EU, is an important impetus for the law-reform initiative. The Commission recommended that legislation be enacted to govern the collection, use and dissemination of personal information in both the public and private sectors, and called for the creation of a specialized Commission.

The Commission then published draft legislation, the draft Protection of Personal Information Bill, for public comment in October 2005.13 The draft Bill proposes general legislation to regulate the processing of personal information by public and private bodies. The legislation centers on a set of "information protection principles" which flesh out a higher-level requirement that personal information must be processed "in order not to intrude upon the privacy of the data subject to an unreasonable extent."14 The application and enforcement of the information protection principles will be the job of a data protection authority, to be called the Information Protection Commissioner, who will head an Information Protection Commission.15 In addition to its duties under the data protection legislation, it is proposed that the Commission should have oversight over the Promotion of Access to Information Act.

The final recommendations of the Law Reform Commission, made in response to a huge volume of comments received on its draft Bill, will be published in 2007 in the form of a Report to the Minister of Justice and Constitutional Development. Should the Commission’s recommendations be accepted, the Minister will then introduce the recommended legislation in Parliament. This is unlikely to take place before 2008 and the legislation is therefore unlikely to emerge from the Parliamentary process before the second half of that year.

Footnotes

  • 1. http://www.info.gov.za/documents/constitution/index.htm
  • 2. http://www.concourt.gov.za
  • 3. De Reuck v. Director of Public Prosecutions (Witwatersrand Local Division) 2004 (1) SA 406 (CC) (justifiable to limit the right to privacy to protect children from the exploitation and degradation inherent in child pornography).
  • 4. Bernstein v. Bester NO 1996 (2) SA 751 (CC); Mistry v. Interim National Medical and Dental Council of South Africa 1998 (4) SA 1127 (CC).
  • 5. S v. Jordan 2002 (6) SA 642 (CC) (no significant privacy interests in the act of prostitution).
  • 6. Id. at paragraph 81.
  • 7. http://www.concourt.gov.za
  • 8. The South African Bill of Rights has both direct and indirect application in so-called "horizontal" disputes (disputes not involving state actors or legislation).
  • 9. Prinsloo v. RCP Media Ltd t/a Rapport 2003 (4) SA 456 (T) (injunction available to prevent publication of purloined photographs of notorious surgically-improved Pretoria lawyer).
  • 10. http://wwwserver.law.wits.ac.za/sca/summary.php?case_id=12818
  • 11. Huey Extreme Club v. McDonald t/a Sport Helicopters 2005 (1) SA 485 (C), (extensive, continuous filming an invasion of privacy that is not justified by the need to promote aviation safety).
  • 12. http://www.doj.gov.za/salrc/ipapers.htm
  • 13. http://www.doj.gov.za/salrc/dpapers.htm
  • 14. Clause 7 of the draft Bill.
  • 15. See Chapters 5, 7 and 8 of the draft Protection of Personal Information Bill.