Balancing and reconciling the conflicting values of information access and personal data laws in South Africa

Abstract

Information access and protection of privacy (IAPP) laws sound like a contradiction in terms. However, both are internationally and constitutionally recognised rights as neither is accorded greater importance than the other. This raises a number of questions: ‘Does the right of access supersede the right to forget?’; ‘Does the privacy of a person override access to information?’; and ‘What if private information is in the public domain?’ There are many more questions than answers that require the balancing and reconciliation of these conflicting values of IAPP. This chapter proposes mechanisms for balancing and reconciling the conflicting values of information access and personal data laws in South . The chapter analysed the IAPP laws in South Africa, that is, the Promotion of Access to Information Act (Act No. 2 of 2000) and the Protection of Personal Information Act (Act No of 2013) to identify the conflicting and complementary values. Literature was also reviewed on issues relating to IAPP. The chapter established the fact that although access to information has long been implemented in South Africa, IAPP laws have not yet fully grown. The privacy law was passed in 2013 but came into effect only on 01 July 2020. While the chapter acknowledges that both pieces of legislation embrace the writ ‘habeas data’, there is no outright answer to the challenge for balancing the two laws. However, some of the issues can be balanced through compatible definitions. Furthermore, there is complementary provision in the two laws as South Africa’s right of access to information does make provision for refusal of information on the grounds of privacy. Furthermore, both laws make provision for access of one’s own personal information held by public or private entities. The chapter provides ways in which implementing agencies and oversight mechanisms can balance the two rights to mitigate conflicting values. For example, the simple steps for organisations would be to identify relevant laws, identify records to which laws apply and ensure that records are created and handled in accordance with applicable laws. The study encourages proactive disclosure by implementing agencies to allow citizens to participate in decision-making in the public sector. This way the country will be considered advanced as citizens will be accessing information without lodging requests.