Your rights under the Protection of Personal Information Act

2013-03-17 10:00

Drew Van Vuuren, the chief executive of specialist-information security and privacy practice 4Di Privaca, answers our questions about the proposed Protection of Personal Information Act before Parliament

The right to privacy is enshrined in our Constitution and, over the coming months, as people become more familiar with the dos and don’ts associated with the new act, we could see a shake-up across a number of industries.

Transgressions could vary in severity from unsolicited emails or text messages that target individuals for services for which they never subscribed, to security breaches such as identity theft, where personally identifiable information is compromised or stolen and sold.

But consumer education needs to take place first.

The average individual is unaware of his or her rights in relation to the proposed legislation.

Education of the rights assigned in the act is important as this will empower individuals to ensure their rights to privacy are upheld.

How will the legislation protect the consumer?

The minimum a consumer can expect is a safety net that allows their information to be correctly handled, processed and shared.

In fact, the legislation will empower the individual to ensure their details are not randomly shared, sold or distributed without their explicit consent, and will also give them the opportunity to opt out without the risk of lack of access to financial services.

What will companies no longer be able to do?

With the incoming legislation, companies will have to make use of an explicit opt-in component.

This is more significant than it may sound.

Traditionally, there has been an explicit opt-out, so companies have assumed people would like to be – by default – contacted for marketing purposes and the consumer had to opt out of being contacted.

The new legislation will mean consumers will have to opt in for marketing purposes.

If you choose to opt in, then they can share the information with their marketing partners.

They can’t, however, sell your info on without your specific opt-in.

Will this stop direct marketing and junk mail?

The consequences for the direct marketing industry are extensive and wide-ranging. Most notably, with the specifics around the opt-in or opt-out mandates, the direct marketers will really need to ensure they are in fact targeting individuals who have explicitly stated that they would like to be contacted by direct marketers.

What can I do about unsolicited marketing?

The act makes provision for the consumer to request the source of their private information from the organisations that sent the unsolicited communication.

Currently – under the Consumer Protection Act – if individuals request this information and the response from the organisation that issued the unsolicited emails is not forthcoming in a reasonable amount of time and at a reasonable cost, then the organisation can be held liable and there is a prison term of up to two years for not releasing the information to the requester.

The new act will carry on this punitive measure and enforce it more strictly.

If data is compromised, what is your recourse?

With the appointment of the new independent information regulator, specifically to deal with the new act, we, as consumers, will have access to a body that will deal with specific complaints regarding the handling and processing of personal information.

If, for some reason, there is a compromise, then we have the right to lodge a complaint with the regulator and the regulator will be forced to investigate.

In addition, the power of consumer complaints forums and social media should also not be underestimated.

In other words, a consumer who has experienced misappropriation of information, has a number of options available to them, some with potentially damaging consequences to the company in terms of public perception and trust.

When will the new act become effective?

There is no set date for the promulgation and, in fact, it was due to be before the portfolio committee on March 6, but it was postponed.

The consensus is that it will follow the same schedule as the Protection of State Information Bill, which government has committed to being made law by June 2013.

Once the new legislation is law, organisations, both in the private sector and in the public sector, will have one year to comply.

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