What is privacy?

Privacy is a wide concept. It includes separate, but related concepts, such as bodily privacy (which involves the protection of peoples’ physical selves against invasive procedures such a genetic tests, drug testing and cavity searches), the privacy of communications (which covers the security and privacy of snail mail, e-mail, telephones and other forms of communication) and information privacy (which involves rules governing the collection and handling of personal data). Information security law concerns itself with information privacy.

Does South African have any privacy laws?

Yes, in terms of the Final Constitution (1996) and at common law.

In terms of section 14 of the Final Constitution, “everyone has the right to privacy, which includes the right not to have – (a) their personal home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed”. Section 32 of the Constitution gives everyone a “(1) … right of access to – (a) any information held by the State, and; (b) any information that is held by another person and that is required for the exercise or protection of any rights …”.

At common law, the right to privacy of personality has been recognised as an independent personality right that applies both to natural persons and legal persons.

Are there any limitations on the constitutional right to privacy?

The right to privacy under the Final Constitution is not an unlimited right. Section 36 of the Final Constitution contains a “limitations” clause which provides that in-roads can be made into other rights contained in the Constitution where it would be reasonable and justifiable to do so.

Therefore, the right to privacy under section 14 of the Constitution is not an absolute right and has lawfully been limited by the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002.

The right to access information under section 32 is also not an absolute right and has been limited by the Promotion of Access to Information Act of 2000. The effect of the RIC Act is that employers are entitled to monitor and intercept electronic communications in certain circumstances and third parties are entitled to request and access information held about themselves by a public of private body.

What are the threats to privacy?

Even with the adoption of legal and other protections, violations of privacy still remains a concern. This is one the reasons why the South African Law Commission is in the process of drafting a Data Privacy Act. Various threats to privacy include the following:

  • Increased data sharing
  • Increased profiling and identification
  • Transactional and location data
  • Video surveillance
  • Satellite surveillance
  • On-line profiling
  • Information brokers
  • Telephone monitoring
  • Email and Internet use monitoring