The Protection of Personal Information Bill (POPI Act)

The POPI Act:

The Protection of Personal Information Bill (POPI Act)On the 22 August 2013, the South African Parliament approved the Protection of Personal Information Bill (POPI) and issued the following statement

Personal information must be processed lawfully and reasonably, in a manner that does not infringe the privacy of the tenant (individual or company), by gathering as little tenant information as possible and reasonable in the circumstances, and with the consent of the tenant or when screening the potential tenant.

“The Bill gives expression to the right to privacy provided for in the Constitution.  The right to privacy includes the right to protection against unlawful collection, retention, dissemination and use of anyone’s personal information.  The Bill is comprehensive and regulates the manner in which personal information may be processed, by establishing conditions in harmony with international standards that prescribe the minimum threshold requirements for the lawful processing of personal information”.

What remains now is for the Bill, which was signed by our National Assembly, to be translated into Afrikaans and then signed by President Zuma. At that point, the Bill will become law.

What is personal information?

Be careful when screening tenants or entering into leases with tenants – of every individual’s right, as well as every company’s right, to privacy. The legal right of an individual to privacy is based on Section 14 of the Constitution of the Republic of South Africa.

“Personal Information” is extremely widely defined in POPI and includes, inter-alia, race, a name, date of birth, phone number (home and cellular), work and home address, identity number, passport number, banking information or income (of a company or individual), gender, contact details, personal opinions, private correspondence, financial information, and any other information at all which is deemed to be personal.  Personal information applies to tenants (and, in fact, all people and entities) who are both companies and individuals.

What is the aim of POPI and what must the Landlord ensure compliance with in order to ensure that the Law is being followed?

Personal information must be processed lawfully and reasonably, in a manner that does not infringe the privacy of the tenant (individual or company), by gathering as little tenant information as possible and reasonable in the circumstances, and with the consent of the tenant or when screening the potential tenant.

What are a Landlord’s responsibilities under POPI?

POPI governs how landlords may collect, store, record, use and disclose personal information of their tenants or potential tenants (when screening tenants).  POPI states that landlords must notify tenants (or potential tenants) of their purpose for the collection, storage, recordal, use and disclosure of personal information.

Moreover, there is now a duty on landlords to have high standard of security in place from an IT point of view, when storing information electronically.  The landlord must also protect a tenant’s (or potential tenant’s) personal information in the landlord’s custody or control by adopting safeguards to prevent unauthorised access, use, disclosure, loss, destruction, copying or modification of any personal information.

A landlord must respond to a tenant’s (or potential tenant’s) request for access to their personal information by providing the tenant (or potential tenant) with copies of records in the landlord’s possession or control.  A landlord must also tell the tenant (or potential tenant) how their personal information has been used and to whom it has been disclosed.

Can a landlord ask a third party for a tenant’s (or potential tenant’s) personal information?

No.  The landlord, whether screening a potential tenant or entering into an Agreement of Lease, has to have the consent of the person whose personal information is being disclosed.

Can a landlord disclose one tenant’s personal information to another tenant or landlord without consent?

No.  POPI requires that landlords obtain the consent of their tenants (or potential tenants when screening), before disclosing personal information to third parties (with certain exceptions, such as state security).

What are the principles on which POPI operates?

The 8 conditions require that personal data shall:

  1. Only be stored by the data controller to the extent necessary to achieve the purpose for which the information was explicitly collected;
  2. Only be stored in such a manner that the storage does not intrude on the privacy of the data subject to an unreasonable extent;
  3. Be adequate, relevant and not excessive for those purposes;
  4. Have a purpose, which purpose will be specified and determined at the time of collection and disclosed to the data subject;
  5. Be used for a lawful purpose only;
  6. Not be transferred to a third party without the data subject being informed of this;
  7. Not be processed contrary to the purpose for which it was collected;
  8. Only be collected and sent to a third party with the data subject’s consent.

protection of personal information billNON-COMPLIANCE WITH THE ACT!

It is to be noted that non-compliance with the Act , the basic requirements of which are followed by this Policy, can potentially lead to claims for civil damages (including punitive damages), administrative fines of up to R10 million or criminal prosecution where unlimited fines and imprisonment of between 1 and 10 years are prescribed.

Resources:

Landlords Beware New Legislation (Property 24 Newsletter October) – Written by Marlon Shevelew.

ESI Attorneys
Cnr Roger and Edmar Street BellvilleWC7536 RSA 
 • 021-943-5111

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