Constitutional and common law right to privacy currently exist in South Africa. It’s not an absolute right to privacy but rather one that is balanced against competing interests. The right to be left alone should be balanced with the interest of having an open and accountable society i.e. business can often only fulfil its functions properly if it has access to sufficient personal information. Information protection is an aspect of safeguarding a person’s right to privacy. Current legislative trends worldwide tend towards the drafting and enacting of legislation specifically designed at protecting privacy. This has come about due to concerns around the power and enhanced surveillance ability of computer systems. Thus the question is no longer whether information can be obtained but rather whether it SHOULD be obtained and where it has been obtained how it should be used. The underlying assumption is as follows: if the collection of personal information is allowed by law, then the fairness, integrity and effectiveness of such collection and use should also be protected. When information is provided in one context, it should not be used in another. The principles informing the legislation will be drawn from traditional delictual principles as influenced by the Constitution.
No longer is the issue of privacy a domestic problem. Most international instruments require that trans-border flows of personal information are restricted to countries that do not have a certain level of privacy protection, the “safe harbour” principle so-called (cf. OECD Guidelines Governing the Protection of Privacy and Trans-border Data Flows of Personal Data and the European Union Data Protection Directive). In most instances this requires at a minimum that countries enact legislation specifically intended to protect personal information. This will inter alia govern what is considered an appropriate means and purpose for the collection of personal information. Privacy is thus a critical issue in that it could potentially form a barrier to international trade. Remedying this problem by enacting legislation that complies with International Instruments will however require SA to follow similar stringent tests with regards to other countries with whom we exchange information. This would mean that trade with Africa could be made slightly more difficult in that any trans-border information flows would have to be assessed on a casuistic basis. Nevertheless, and with the intentions of creating a strong African trading block it would be in the interests of Africa to develop appropriate trading regulations and protections.
The enactment of this specific privacy legislation will result in amendments to other pieces of South African legislation, most notable the Promotion of Access to Information Act 2 of 2000, the Electronic Communications and Transactions Act 25 of 2002 and the National Credit Bill all of which contain interim privacy protection measures.
The right to privacy is such that a person should have control of their own personal affairs and be able to conduct their personal life free from unwanted intrusions. Data protection is one aspect of safeguarding the right to privacy. The threat to personality by the data user threatens the personality of the individual in two ways: compilation and distribution of personal information is a direct threat to privacy and disclosure of false or misleading information constitutes an infringement of identity.