Since the POPI Act came into force, businesses have come to grips with the many requirements of being POPIA compliant.
One question that seems to be on everyone’s mind when personal information is used centers around consent to use personal information. The first thing businesses did when the Act was enforced was to send out consent forms to everyone whose information they use. Although this is not technically wrong, it is not the best practice.
The POPI Act states that the business must have a lawful purpose and justification to use the personal information, and gives six justification grounds to achieve this. Although “consent” is one of them, it is not the most important ground for using information. Businesses may use personal information without consent if one of those grounds in the Act is accounted for. Getting consent to use personal information satisfies the requirement to have a lawful justification ground, but it also creates other risks of compliance with the Act.
When a business relies on consent to use personal information, it must ensure that the consent is freely given and conforms with the specific requirements set by the Act. It is also essential to remember consent may be withdrawn at any time. Should that happen, the business may then not use the information anymore.
In limiting these risks, the best starting point is to ask if you need consent in the first place.
The justification grounds provided by the Act cover most instances of using personal information. Therefore, it is best to check whether one applies before relying on consent. If the business can show that one of the other grounds reasonably applies, they should not rely on consent.
Simply put, relying on alternative justification grounds for processing personal information is essential. Consent isn’t the only way, as it’s not always possible or necessary. In everyday situations, other justification grounds might work better and make more sense than asking for consent.
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