New information protection law not meant to trip up forensic investigators

23 July 2015 - 13:58 By S’Duduzo Dludla


South Africa has emerged as one of only three countries in Africa that comply with international privacy laws. The other two are Morocco and Egypt‚ according to the results of a survey presented by law firm ENSafrica at a seminar in Sandton‚ Johannesburg‚ on Wednesday.The seminar included explaining the impact of the Protection of Personal Information (Popi) Act on organisations and forensic investigators.Director of forensics at ENSafrica Dave Loxton said while the law was aimed at protecting the constitutional right to privacy of people‚ companies and other organisations‚ it could be challenging for organisations that need to process personal information.This information can include marital status‚ race‚ gender‚ education‚ medical‚ financial‚ criminal or employment history as well as email and physical addresses.The act‚ of which parts came into effect in April last year‚ requires organisations to process personal information lawfully and in a reasonable manner that does not infringe the privacy of individuals.“Records of personal information must not be retained any longer than necessary for achieving purpose for which information was collected‚ unless the retention of record is required by law‚” Loxton said.Processing personal information without the consent of the person could be a violation of the act and parties responsible could be fined up to R10-million.Taken at face value‚ the new law could hold a threat for forensic investigations because those being investigated may well have the time to destroy evidence if their consent first has to be sought.But the Popi act does not apply when personal information is processed by or on behalf of a public body for the pupose of preventing‚ detecting or combating money laundering activities and investigation or prosecution of offences‚ Loxton said. Probes that involve national security and activities aimed at identifying financing of terrorists activities‚ defence or public safety are also exempt‚ he said.Another exemption is when the public interest in processing the informartion outweighs interference with the privacy of a targeted person. Public interest includes the prevention‚ detection and prosecution of offences.This means personal information could be made readily available to protect public interest on financial loss due to dishonesty‚ malpractice or other seriously improper conduct by persons concerned with provision of banking‚ insurance‚ investment and so forth‚ Loxton said.“If there is a legitimate purpose or there are strong allegations against you in the interest of the public or law‚ the acquiring of this information is deemed lawful‚” he said.The survey by ENSafrica found that although South Africa is compliant with international privacy laws the country’s “incidence of corruption and bribery” placed us amongst the worst performers on the continent.The survey found that‚ of the 88 organisations that took part in the research‚ one in four had experienced an "incident of bribery" or corruption in Africa in the past two years‚ an increase of 4% compared with 2013 figures.The survey named South Africa as a corruption hotspot along with Angola‚ the Democratic Republic of Congo‚ Ghana‚ Mozambique‚ Kenya‚ Uganda and Nigeria. - TMG Courts and Law

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