The protection of employees’ personal information: how does the proposed
privacy law impact on the use and protection of employees’ personal
information?
Rufaro Gweshe, *
Debbie Collier ** and Kevin Murphy
“A right to
privacy encompasses the competence to determine the destiny of private facts ….
[A] person is entitled to decide when and under what conditions private facts
may be made public.”[1]
“Privacy
is acknowledged in the truly personal realm, but as a person moves into
communal relations and activities such as business and social interaction, the
scope of personal space shrinks accordingly.”[2]
1 INTRODUCTION
In the
South African context there is consensus on the importance of privacy, whether
in the personal or public realm, and on the need to protect privacy.[3]
This includes consensus on the need for the protection of the privacy of information about a person,[4]
as the first quote above reflects. This is ultimately the aim of the controversial[5]
Protection of Personal Information Bill[6]
(the Bill). The Bill recognises the
threat to privacy posed by organisations that process personal information and sets
up mechanisms to strengthen the control of individuals over their information,
even to the extent that it governs unsolicited and intrusive electronic
communication (spam).[7]
* LLB (UCT). Teaching and research assistant, Department of Public Law, University of Cape Town.
** BA, LLB (Rhodes University), LLM (Cape Town). Senior lecturer in the Department of Commercial Law, University of Cape Town.
[1] National Media v Jooste 1996 3 262 (A) 271.
[2] Ackermann J in Bernstein v Bester NO 1996 2 SA (CC) 751 para 67.
[3] Privacy, an
aspect of personality, is at the core of our democratic values and in South
Africa is protected by section 14 of the Constitution of the Republic of South
Africa, 1996 (the Constitution). See generally the South
African Law Reform Commission, Project 124, Privacy and Data protection,
Report, 2009 at 16 and the sources cited therein.
[4] In addition to the common law protection of privacy, section 14 of the Constitution, which specifically protects the informational aspects of privacy, provides that “[e]veryone has the right to privacy, which includes the right not to have-
(a) their
person or home searched;
(b) their
property searched;
(c) their possessions seized; or
(d) the privacy of their communications infringed.”
In a decision based on the interim Constitution, the
Constitutional Court in Mistry v Interim
Medical and Dental Council of South Africa 1998 4 SA 1127 (CC) considers
informational privacy and the extent to which intrusions of such privacy may be
justified. The discussion in Mistry is
reflected in the limitation clause (section 36) of the 1996 Constitution which
provides that a right contained in the Bill of Rights “… may be limited only in terms of law of general application
to the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including-
- the
nature of the right;
- the importance of the purpose of the
limitation;
- the nature and extent of the
limitation;
d. the relation between the limitation and its
purpose; and
e. less restrictive means to achieve the purpose.”
See also Moonsamy v The Mailhouse 1999 20 ILJ (CCMA) for an illustration of the application of the limitation of rights clause in so far as the privacy of employee information obtained from telephone tapping is concerned.
[5] See for example, Daria Milo “A broad remedy that will blight
freedom of the press” Times Live 17
October 2009 or “Marketing
and your right to privacy” BusinessDay 16
October 2009.
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