The Protection of Personal Information Act, 4 of 2013 (The POPI Act) protects an individual’s personal information. The POPI Act also ensures that the right to privacy in terms of the Constitution is upheld. It is important to remember that processing personal information is only applicable when a responsible party processes it. Any processing for personal or household activity is excluded from the POPI Act as stated by Section 6(1)(a).
With personal information in the public domain, people get confused about what constitutes infringing on one’s privacy and what not. In a recent case, Bool Smuts and Another v Herman Botha, Mr Smuts was accused of infringing on Mr Botha’s privacy when he shared personal information about Mr Botha’s particular practice of trapping animals in the public domain. Mr Smuts shared the personal information in his personal capacity as well as in a business capacity, as Mr Smuts is the owner of Landmark Leopard and Predator Project–South Africa (Landmark Leopard).
After receiving negative publicity, Mr Botha applied for an interim interdict prohibiting Mr Smuts from publishing defamatory statements about him and his business. The High Court of the Eastern Cape Division, Port Elizabeth (the High Court) ordered Mr Smuts to remove all photographs and references of Mr Botha and his business.
Considering the facts of the matter above, the High Court discussed whether Mr Smuts’ publishing of personal information is an infringement on Mr Botha’s privacy even though Mr Botha’s personal information (photographs, his business, the location and the name of the farm) was already published in the public domain by himself to promote his business. The location of the farm was also made available on a public domain as it was a matter of public record in the Deeds Registry.
When Landmark Leopard processed Mr Botha’s personal information, Mr Smuts acted in a business capacity. Although the Court did not consider the application of POPIA, it can be argued that the processing of Mr Botha’s by Landmark Leopard must be justified in Section 11. Because the personal information of Mr Botha and his business was already available in the public domain, Mr Smuts does not need to comply with the requirement that personal information must be obtained directly from the data subject, but that does not mean a business may process the information.
It is important to consider whether publishing personal information was made in a business- or personal capacity. A common misconception is that the POPI Act applies to all public domain/social media posts, but this is not the case, as discussed above. The use or publishing of personal information may not constitute an infringement of one’s privacy in some instances. However, businesses, or Responsible parties, must still consider Section 11 of the POPI Act, which states when personal information may be processed. In Mr Smuts’ personal capacity, the POPI Act does not apply. When taking section 11 into consideration, Landmark Leopard may have had a legitimate interest in the matter when Mr Smuts processed Mr Botha’s Personal Information. Carefully consider the information you make available, or have a sound knowledge of what information is publicly available. As a business owner, confirm if you have a justifiable reason for processing personal information.
Want to know more about the processing of personal information? Kindly contact your nearest SEESA Consumer Protection & POPI Legal Advisor. Alternatively, leave your contact details on our website, and a SEESA representative will contact you.
About The Author:
Jean-Mari v.d. Westhuÿzen started her career at SEESA in April 2022 and is currently a Consumer Protection & POPI Legal Advisor at SEESA’s Pretoria branch. She completed her LLB degree in 2021 at the North West University.
Resources:
- Protection of Personal Information Act 4 of 2013;
- The Constitution of the Republic of South Africa;
- Bool Smuts and Another v Herman Botha (887/20) [2022] ZASCA 3;
- Nicolene Schoeman-Louw, February 2022, Testing the limits of the Protection of Personal Information Act 4 of 2013 (POPIA) – https://www.golegal.co.za/limits-personal-information/ (accessed on 12 January 2023).