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Privacy rights in South Africa: Data And Cloud

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Looking at privacy rights in South Africa with the arrival of the Fourth Industrial Revolution (4IR) we stand at the verge of a technological revolution, characterised by the digitalisation of economies and the utilisation of new technologies such as cloud computing and artificial intelligence. On 1 April 2021, the Minister of Communications and Digital technologies published a Draft National Data and Cloud Policy (Draft Policy), open for public comment. The governments vision is to transform the South African economy into one that is both “data intensive and data-driven”.

The purpose of the Draft Policy is explained as follows:

“The policy seeks to enable South Africans to realise the socio-economic value of data through the alignment of existing policies, legislation and regulations. The policy further seeks to put in place a conducive and enabling environment for the data ecosystem to thrive”. Once finalised, the Draft Policy will have an impact on all South Africans.  The policy will be applicable to all three levels of government, organs of state, public enterprises, the private sector, the general public and individual citizens. Essentially the draft policy creates a framework on how the government will treat data, develop cloud infrastructure and how the data of South Africans will be stored and kept.  The key policy interventions relate to, the ownership of data generated in South Africa, data sovereignty, data localisation, data openness, and the development of digital infrastructure.

Amongst other policy interventions, the Draft Policy makes the following interesting interventions:

  • The draft policy proposes a more state-centric approach.  To ensure the rapid deployment of cloud infrastructure, the draft policy outlined plans to develop a State Digital Infrastructure Company (SDIC) a High-Performance Computing and Data Processing Centre (HPCDPC) to provide cloud services to public bodies.
  • The Draft Policy acknowledges the importance of an open data framework and therefore recognises the need to develop a National Open Data Strategy, informed by ‘Data for Good’ principles.  The Draft Policy further proposes that government establish a “Data Trust” to ensure that data generated by the public and private sectors are shared in a fair, equitable and transparent manner.
  • The establishment of Special Economic Zones (SEZ) in support of local and foreign investments in data and cloud infrastructure.  Furthermore, any investments in data centres or cloud services must comply with BBBEE.
  • The Draft Policy recognise existing privacy policies and notes that the processing of personal information must comply with the provisions of POPIA, PAIA, ECTA as well as with international best practice.
  • The imposition of data localisation requirements.   To ensure ownership and control of this data generated within the border of South Africa it is proposed the Draft Policy that all such data “shall be the property of South Africa, regardless of where the technology company is domiciled. Government shall act as a trustee for all government data generated within the borders of South Africa.”.  A further implication will be that data generated in South Africa shall be co-owned by the government.

It is clear that the government recognised the rapid growth in the digital economy and the need to align South African developments with the 4IR.  The control over data has become important and is prominent in the development of digital technologies. The Draft Proposal do however raise several questions and concerns regarding the general digital readiness of South Africa’s data infrastructure, government priorities such as socio-economic development and the protection of fundamental human rights, specifically the right to privacy, and other policy interventions such as digital localisation, digital sovereignty and the ownership of data generated using South African sources. The Draft Policy is open to public comment, the minister is currently accepting comments and submissions on it until 11 June 2021..

The Draft Policy can be accessed here: https://www.gov.za/sites/default/files/gcis_document/202104/44389gon206.pdf

Posted on 2 September 2021
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