Circle City Info

These Facebook and other social media posts could get you into legal trouble in South Africa

With the pending full commencement of the Protection of Personal Information Act (POPIA) on 1 July 2021, much of the focus has been on the preparations of businesses to ensure compliance.

However, the Act also has ramifications for everyday South Africans and the processing of personal information on social media platforms, say legal experts at Werksmans Attorneys.

The POPIA aims to protect an individual’s right to privacy by offering protection against the unlawful collection, retention, dissemination and use of personal information

In the event that an individual discovers a post on a social media platform disclosing certain ‘personal information’ – including a photograph – the subject of the post may be considered a data subject and the person who made the post may be considered a ‘responsible party’ as defined in the Act, said Werksmans.

“Posting the personal information on social media would also arguably amount to the dissemination of personal information, as contemplated in the definition of processing in POPIA. Thus, the responsible party may be obliged to comply with the provisions of POPIA.”

Consequences

The consequences of being considered a ‘responsible party’ in terms of the POPIA are substantial and include the requirement for a responsible party to comply with the eight conditions of lawful processing of personal information, Werksmans said.

“The conditions include a requirement to obtain the consent of the data subject prior to posting a photograph or the views of that data subject on a social media platform.

“The responsible party would also be required to appoint an information officer and publish and comply with a POPIA manual as read with section 51 of the Promotion of Access to Information Act.”

Arguably, the application of POPIA in the above circumstances would lead to an absurd result where every individual who posts photos, memes, videos, or the views of another person, is considered a responsible party who must comply with onerous conditions, Werksmans said.

To prevent the above mentioned situation from arising, section 6(1)(a) of POPIA states that act does not apply to the processing of personal information in the course of a purely personal or household activity.

Werksmans said that the repercussions of section 6(1)(a) of POPIA are arguably that:

  • POPIA applies only to business or professional activities; and
  • In so far as any pictures or video taken or views shared are disseminated on social media or any other platform in a personal capacity, POPIA arguably does not apply.

POPIA does not define the terms ‘personal activity’ or ‘household activity’, Werksmans said.

The terms may have to be interpreted not only by the ordinary grammatical meaning of the words but also by taking into account, on a case-by-case basis, what contemplates work as opposed to personal use in respect of the relevant social media user, it said.

“Disgruntled individuals who find their personal information posted on social media platforms without their consent are, however, not without legal remedy.

Our common law, as codified in the Constitution of the Republic of South Africa, 1996, protects individual’s right to privacy on a professional and personal basis.

“Thus, social media users who post what may be considered as personal information, should do so, keeping in mind that the subject of the posts, although falling out of the ambit of POPIA, are still protected by the common law in the event that the post breaches the privacy of the subject.”

  • Commentary by Neil Kirby (director), Helen Michael (director), and Zamathiyane Mthiyane (senior associate) at Werksmans Attorneys.

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