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The Protection of Personal Information Act (POPIA) is here!

3 July 2020

Written by Karus Prinsloo, 30 June 2020

1 July 2020: the effective date for the bulk of POPIA’s requirements.  POPIA provides for a window period of one year in order for organisations to comply with POPIA’s obligations.

POPIA gives effect to the constitutional right to privacy. It is based on international best practice and reflects some of the best features of international privacy legislation. The protection of personal information is now a statutory duty; POPIA represents sound business practice… and brings opportunity for your organisation!

Areas of business impacted by POPIA

Although all businesses differ, the biggest impact is generally in the following areas of business:

  • Interaction with customers;
  • Human Resources (processing of employee information);
  • Marketing and advertising;
  • Procurement (processing of supplier information);
  • Information Management (the classification, retention and security of information);
  • Finance: debtors and creditors information; and
  • Cross-border transfers of Personal Information.

Potential risks to business

Non-compliance poses a huge reputational risk, financial risk (administrative fines of up to R10 million!) and operational risk (such as spending operational time to reactively align business processes, documents and systems with the legal requirements).

POPIA has claws! Over and above the administrative fines, POPIA provides for civil claims (including class actions) and certain offences with imprisonment of up to ten years.

POPIA is here – what now?

Assess the impact of POPIA’s requirements on your organisation. It will be necessary to change certain business processes, policies and documentation, as well as to align IT systems with POPIA’s requirements. Below are 10 focus points to consider whilst preparing for POPIA, which became effective 1 July 2020 and must be adhered to by 30 June 2021:

  1. Have a plan

A phased approach is important! Identify POPIA’s impact on your organisation, who is responsible for what and by when, to ensure compliance with POPIA.

  1. Two sides of a coin

Relook the organisation’s compliance with the Promotion of Access to Information Act (“PAIA”), while working on POPIA readiness.

  1. Compliance is everybody’s business

Who in the organisation should take the lead with regard to ensuring readiness? Allocate responsibility to a line function or individual who can co-ordinate the organisation’s POPIA readiness drive.

  1. Who is who

POPIA provides for roles of “data subject”, “responsible party” and “operator”. Identify these role players for all instances of processing of personal information.

  1. POPIA is about more than the 8 conditions for processing

Identify the circumstances when “special personal information”, as defined by POPIA, is processed. Ensure that such processing comply with the requirements relating to special personal information.

Address the requirements relating to direct marketing, trans-border information flows and automated processing of information.

  1. Keep it simple: policies and contracts

Prior to developing POPIA specific policies and contracts, ascertain what is currently in place. Obtain advice about the adequacy of POPIA provisions in policies and agreements, prior to developing a “POPIA policy”. It is quite often not required to amend existing contracts.

  1. Hardcopy documents… or just electronic?

Processing of personal information is not only about electronic processing. Remember to include the processing of personal information from physical documents in the scope of readiness assessments.

  1. De-identify to the extent that it cannot be re-identified again… and the other exclusions

Take the circumstances when POPIA is not applicable into account.

  1. The carrot and the stick

Intentionally identify and pursue opportunities which POPIA opens for your organisation. Opportunity could knock in terms of new products and services, or by positioning the organisation as a responsible corporate citizen.

  1. And then… other:

Establish under which circumstances consent should be obtained. Identify quick wins. Chances are that the organisation has an asset register for the physical assets it holds; consider developing an information asset register (with fields such as who uses information for what, and the like). These factors will be explored further in future articles.

Contact us at karus.prinsloo@inlexso.co.za for assistance with regard to your POPIA requirements. Make sure not to miss our August Information Sharing with Karus Prinsloo. For more information please click here.

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