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Privacy-Online • Accountability for Protecting Personal Information | News

Accountability for Protecting Personal Information

Posted October 9, 2018
Written by Mark Heyink
The 28th September 2018 saw the world celebrate “Right2Know” day. The Information Regulator (Regulator) is to be congratulated on organising a conference to mark the celebration. Several speakers eloquently emphasised the importance of access to information in an open democracy as well as the enforcement of sanctions against those who do not comply with their obligations. The importance of the handing over of the Regulation of the Promotion of Access to Information Act to the Information Regulator was also addressed as the South Human Rights Commission has never enjoyed the enforcement powers granted to the Regulator.

In doing so the speakers pointed out the delinquency of government and the fact that without the mechanisms of enforcement introduced by PoPIA and which in the future to be regulated by the Regulator, parties in breach of the provisions of PAIA enjoy relative immunity from their delinquency. Figures were produced that indicate the alarming extent of government’s (from provincial to municipal) non-compliance with the law.

It was also pointed out that the information so vital to revealing the massive extent of corruption within government and particularly relating to state capture, did not come to light as a result of PAIA applications but rather as a result of leaked information. If anything illustrates the importance of effective access to information and holding those entrusted with government responsible for their actions, the revelations in the Zando Commission, the Nugent enquiry into SARS, and several other ongoing enquiries do. The damage that the mis-governance of the country and its institutions has caused is incalculable.

The Deputy Minister of Justice and Constitutional Development, John Jeffery, was one of the speakers. In his address he reinforced the importance of the Information Regulator and touched on the announcement by Advocate Pansy Tlakula that a budget had been agreed with the Minister of Finance, which allowed for advertisements to be made in October with a view to appointing administrative management and staff to the Information Regulator. The Deputy Minister then gave the assurance that the delays in rendering the Information Regulator functionally operative were as a result of “bureaucratic challenges” and not a failure of political will. The Minister quoted the author Yuval Noah Harari in his writings “Homo Deus: A Brief History of Tomorrow”, emphasising the importance of effective regulation of information. I take the opportunity of quoting the same author in a more recent book “21 Lessons for the 21st Century”. He states:
 
“... We have thousands of years of experience in regulating the ownership of land. We know how to build a fence around a field, place a guard at the gate, and control who can go in. Over the past two centuries we have become extremely sophisticated in regulating the ownership of industry – thus today I can own a piece of General Motors and a bit of Toyota by buying their shares. But we don’t have much experience in regulating the ownership of data, which is inherently a far more difficult task, because unlike land and machines, data is everywhere and nowhere at the same time, it can move at the speed of light, and you can create as many copies of it as you want.

So we had better call upon lawyers, politicians, philosophers and even poets to turn their attention to this conundrum: how do you regulate the ownership of data? This may well be the most important political question of our era. If we cannot answer this question soon, our socio-political system might collapse.


[Emphasis added by the author]

It is against this backdrop that the Honourable Deputy Minister should consider the performance of his department and the delays in addressing the protection of personal information. The South African Law Reform Commission was first tasked with this issue in 2002. It completed its extensive research and recommendations on this critically challenging issue within 2 years and reported to the then Minister of Justice. The report appears not to have been read until 2009 where suddenly it started to gain importance in view of the pending 2010 World Cup and the requirements of international airlines and booking agents relating to assurances on privacy of personal information. On the 8th and 9th October 2009 public hearings were convened by Parliament to receive comment on the draft Bill. At least nine years will have passed before a fundamental recommendation of the SALRC, the establishment of an Information Regulator, will have been properly implemented and the protection of this constitutional right can be commenced. The consideration of the Bill, delays in signature of the Bill and its enactment by the former State President and the delays in appointment of the Information Regulator and staff, demonstrates little urgency or the exercise of political will. The “…fiddling while Rome burns…” will be judged by history to be an abject failure of foresight and action so critical to the wellbeing of our country in the 21st century.
 
Ultimately, instead of playing the blame game and pointing fingers at faceless bureaucrats, a well-practiced pastime within the ruling party, heed needs to be taken of the finding of the Constitutional Court and it’s  pronouncement that Bathabile Dlamini is accountable for her ‘reckless’ and ‘grossly negligent’ actions in the SASSA matter. One can only hope that someone will be accountable for ensuring that the vital constitutional right that PoPIA seeks to protect and enforce, will become a reality to South Africans before the significant damage occasioned by the unforgivable delays by government becomes irreparable.

©Mark Heyink 2018
www.privacyonline.co.za

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  • 09 October 2018 - 12:11:00
    The 28th September 2018 saw the world celebrate “Right2Know” day. The Information Regulator (Regulator) is to be congratulated on organising a conference to mark the celebration. Several speakers eloquently emphasised the importance of access to information in an open democracy as well as the enforcement of sanctions against those who do not comply with their obligations. The importance of the handing over of the Regulation of the Promotion of Access to Information Act to the Information Regulator was also addressed as the South Human Rights Commission has never enjoyed the enforcement powers granted to the Regulator.

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