BUSINESS LAW &TAX
SEPTEMBER 2022 WWW.BUSINESSLIVE.CO.ZA
A REVIEW OF DEVELOPMENTS IN CORPORATE AND TAX LAW
Balancing Paia and Popia
is imperative to understand •theIt link between the two acts Era Gunning ENSafrica
W
ith the Protection of Personal Information Act, 2013 (Popia) having come into effect just over a year ago, it is imperative for those who have their personal information in the hands of a third party and those who handle the personal information of data subjects to understand their rights and responsibilities and to know the link between Popia and the Promotion of Access to Information Act, 2000 (Paia) Paia came into operation on March 9 2001. It gives effect to the constitutional right of access to any information held by a public or private body or person where it is required for the exercise or protection of any right. This right is subject to certain limitations, including grounds for refusal set out in Paia. A request for a record from a public body excludes a request for access to a record containing personal information about the requester. But in the case of a request for access from a private body, it includes a record containing
personal information about the requester or the person on whose behalf the request is made. “Personal information”, in terms of Paia, means information relating to an identifiable natural person such as a home address, names and photographs. This does not include information about an individual who has been dead for more than 20 years. In contrast, “personal information” in terms of Popia means information relating to an identifiable, living, natural person, and where, applicable, an identifiable, existing juristic person. Paia (as amended by schedule 1 to Popia) obliges public and private bodies to compile a manual to enable a person to obtain access to the information the body holds and stipulates the minimum requirements that the manual has to comply with. Popia gives effect to
POPIA PROMOTES THE PROTECTION OF PERSONAL INFORMATION PROCESSED BY PUBLIC AND PRIVATE BODIES
ACCESS DENIED
/123RF — OKSKAZ constitutional everyone’s right to privacy. It promotes the protection of personal information processed by public and private bodies, including certain conditions so as to establish minimum requirements for the processing of personal information. The act balances the need for access to information against the need to ensure the protection of personal information by the establishment of the information regulator, which has oversight over the processing of personal information. In terms of Popia, data
subjects are given certain rights, including the right to request a responsible party to confirm, free of charge, whether or not the responsible party holds personal information about the data subject; and request from a responsible party the record or a description of the personal information about the data subject held by the responsible party, including information about the identity of all third parties, or categories of third parties, who have, or have had, access to the information. The responsible party
may not refuse to provide this information to the data subject unless it has the grounds for refusal as set out in Paia.
PUBLIC DOMAIN
In the recent case of Smuts and Another v Botha, the Supreme Court of Appeal ruled that where a person exposes their personal information in the public domain by their own actions, the information ceases to fall under the protection of the right to privacy and can be published online by another party in the exercise of their right to freedom of expres-
sion. In this case, cyclists were given access to Botha’s farm for an adventure race organised by a third party. During the ride across the farm, one of the cyclists came across two cages containing dead animals. He photographed the scene and sent the pictures to Smuts, an avid wildlife conservationist who then published his opinion on Facebook on what he regarded as unethical animal trapping practices by Botha. In doing so, he made reference to Botha’s personal information, including the name and Google search location of his business, his home address and his telephone numbers, as well as the name of his business. Smuts also included a picture of Botha holding his six-month-old daughter and a WhatsApp conversation between Smuts and Botha. The post generated many comments on Facebook, which were mostly critical of Botha and the particular practice of trapping animals. Botha sought an urgent interdict from the High Court of the Eastern Cape Division, on the basis that his right to privacy had been infringed. The court ruled that the name of the farm and Botha’s identity constituted personal information and, as such, were protected by his constitutional right to privacy. On CONTINUED ON PAGE 2