South Africa Privacy Regime Delays May Be Nearing End

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By Edwin Naidu

Delays in implementing South Africa’s privacy statute may cloud the country’s international data protection stature but companies have enjoyed a silver lining in more time to figure out how to comply with the new law, privacy professionals told Bloomberg BNA.

For now, the up to 10 million rand ($765,405) fines and up to 10 years’ imprisonment of company leaders for violations of the 2013 Protection of Personal Information (POPI) Act are toothless threats, they said. POPI was enacted in 2013 and slated to be fully implemented within approximately a year. However, implementing regulations have only been issued on the establishment of a privacy regulator. The pause has given companies some breathing room to adjust to the new privacy requirements, but they shouldn’t expect delays to continue indefinitely, the privacy pros said.

Steven Ambrose, a Johannesburg technology consultant and chartered accountant, told Bloomberg BNA that companies welcomed the delays in issuance of POPI implementing regulations because the new privacy regime is substantial, has massive implications across all sectors of business and is focused on constantly evolving privacy and data security threats. POPI “attempts to address a massive technologically-driven moving target that is seriously complex in all respects,” he said.

Information Regulator Pansy Tlakula told Bloomberg BNA that, according to government officials, it could take up to an additional two years before the law can be enforced. However, Tlakula said her office plans to be prepared to conduct its education, oversight and enforcement duties by December and is working with the government to finalize missing POPI-implementing regulations.

The office hoped that “small business, corporates and multinationals use the time they have while we set up our systems to become compliant so that once we begin operating fully, it would be full steam ahead,” Tlakula said at a Feb. 13 public briefing.

Two Years to Enforcement?

Estelanie Kennedy, a spokeswoman for the Wireless Access Provider’s Association industry group, told Bloomberg BNA that the projected two-year lead time until POPI is enforced is a reasonable time frame for companies to finish their compliance planning.

Dominic Cull, an information and communications technology attorney at Ellipsis Regulatory Solutions in Cape Town, South Africa, told Bloomberg BNA that there is a great deal to be done to set up the institutional framework and flesh out provisions of POPI. “We have too many laws that are not being enforced and care should be taken with complex legislation,” such as POPI, he said.

Cull said he expects that the implementation will be extended to allow smaller companies and government to comply, but it is clear that POPI’s mere existence is already having a positive effect on how large corporations are dealing with personal information.

Cross-Border Data Transfers

The CIO Council of chief information officers from South Africa-based companies, and multinationals doing business in the country, met Feb.10 to discuss the POPI regulations. “Ultimately, the CIO council revealed interesting but not insurmountable challenges,” Theo Watson, a commercial attorney at Microsoft Inc., told Bloomberg BNA.

A concern frequently raised at Microsoft by cloud service providers is whether the regulations prohibit the storing of a customer’s data outside the borders of South Africa, Watson said. In cloud computing “most data generated by users resides on servers outside the legal or territorial border of the users’ country of residence. This means that the data of an individual becomes subject to a foreign legal regime,” he said.

POPI is designed to protect personal information as it moves offshore, Watson said. The “overriding intention of POPI is to guide us on how to transfer personal information internationally, not prevent us from doing so,” he said.

To contact the reporter on this story; Edwin Naidu in Johannesburg at correspondents@bna.com

To contact the editor responsible for this story: Don Aplin at daplin@bna.com

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