Industry safe from data Bill

By Leon Engelbrecht, ITWeb senior writer

Johannesburg, 29 Feb 2008

Wireless and Internet service providers, already under threat of prepublication censorship under looming amendments to the Film and Publications Act, should not be affected by the Protection of Personal Information Bill, should that become law.

At least one legal observer has expressed concern that the current publicly available Draft Bill, posted on the Internet in 2005, does not contain a "public interest" exemption clause that would exempt the media, as well as bloggers from complying with that law.

The SA Law Reform Commission (SALRC) has been intermittently working on the Bill since 2000, but it has yet to reach the Department of Justice, which early last year said enacting the law was a "priority".

SALRC researcher Ananda Louw says the draft in question was posted for public comment and the draft was subsequently updated. The update is, however, not yet in the public domain as it must still be internally approved by the SALRC's board.

"We are not going to publish the Bill for comment again since we have had a very thorough consultation process and the ordinary Parliamentary processes will also make provision for further inputs," Louw says.

ICT lawyer Reinhardt Buys says the exclusions detailed in sections 31(1) of the existing draft of the Bill are wide enough to protect the media and "ensures media freedom/freedom of expression".

"Although not as extensively drafted as the exclusions detailed in section 32 of the UK's Data Protection Act, the exclusions in the Bill amount to roughly the same," he says. "It is actually better to draft exclusions vaguely (like in the SA Bill) and leave the interpretation thereof open to the courts than over-legislate and leave the courts with nothing more but to interpret the legislative provisions," he adds.

That way, he says, the courts will have the opportunity to weigh privacy interests against the interests of free speech and media freedom in every future dispute where these interests conflict. "Also, the scope of the Bill is limited by the provisions of section three and the definition of 'personal information'.

"In short, every newspaper and magazine confronted by allegations of breaching the Bill because they exercised their media freedom, may rely on the exceptions provided for in section 31."

Legally liable

Meanwhile, the Internet Service Providers' Association (ISPA) is joining a call from the legal fraternity for government to speed up the process. "ISPA is unaware of the reasons for the delay in taking the Bill to Parliament but urges all role players to do their utmost to bring much needed protection to SA consumers," the organisation said in response to a query by ITWeb.

"Once law, the legislation will hold companies and individuals legally liable should they fail to take adequate steps to protect other people's private information," ISPA adds. It will also end what ISPA calls a "rapid growth in dubious data-sharing practices facilitated by the increase in high-speed electronic communications and which is exacerbated by the lack of a data security culture in SA.

"...the Bill is of critical importance and should be finalised as soon as possible so as not to impact negatively on consumer confidence and to prevent piecemeal attempts to fill gaps in current legislation such as the Electronic Communications and Transactions Act, the National Credit Act, [and] the proposed Consumer Protection Bill..."