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POPIA is almost here: more detail on prior authorisation for processing special personal information and children’s information released

The long-awaited Protection of Personal Information Act, 2013 (“POPIA”) becomes effective on 1 July 2021.

Ahead of the deadline, the Information Regulator has recently issued two additional guidance notes on the processing of:

  • personal information of children (below the age of 18): “to guide responsible parties who are required to obtain authorisation from the Regulator to process personal information of children, as provided for in section 35(2) of POPIA.”; and
  • special personal information, such as race and health information, “to guide responsible parties who are required to obtain authorisation from the Regulator to process special personal information, as provided for in section 27(2) of POPIA.”

The processing of personal information of children and special personal information is stringently regulated in terms of POPIA, and, subject to limited exceptions, consent from a competent person in respect of the processing of a child’s personal information, or the data subject in respect of special personal information, is required.

This is often not practicable, especially in respect of information the responsible party may already have in its possession when POPIA becomes effective, and responsible parties may therefore wish to apply for authorisations as discussed in the guidance notes. It is only necessary to apply for prior authorisation if the limited exceptions do not apply to the responsible party processing children’s personal information or special personal information.

What is of relevance from the guidance notes is that more context is given to the meaning of “public interest” (which is not defined in POPIA). The Regulator has said the following in respect of the meaning of public interest:

“Public interest is a wide and diverse concept that cannot, and should not, be limited in its scope and application. The definition of what constitutes public interest varies across jurisdictions and should be assessed on a case-by-case basis. In its very basic formulation, public interest is the notion that an action or process or outcome widely and generally benefits the public at large (as opposed to a few or a single entity or person) and should be accepted or pursued in the spirit of equality and justice”.

 

For more information, please contact:

 

Era Gunning

Banking and Finance | Executive

egunning@ENSafrica.com

+27 82 788 0827

 

Nicole Gabryk

Dispute Resolution | Executive

ngabryk@ENSafrica.com

+27 82 787 9792