Monday, 30 April 2012

POPI: Protection of Personal Information

By now, most will have heard of POPI, or the Protection of Personal Information Bill. Principally, POPI's goal is to protect our constitutional right to privacy. This follows South Africa's recent trend of promulgating pro-rights, consumer centric legislation such as the Consumer Protection Act and the National Credit Act.
Most commentators believe POPI’s promulgation into law is imminent and I would expect it to happen in the next year. How does this effect ordinary Joe public and/or companies? 

The logical starting point is to consider POPI's application, i.e.: will it even apply to me/my situation? That question will probably be answered in the affirmative regardless of whether private individual or juristic entity.  Simply, if one is processing (using, storing, transferring) personal information (broad definition including most forms of data one would consider personal in nature, e.g.: race, gender, blood type, religion) then POPI will apply.

For the ordinary person what this means is that a regulatory body called the Information Protection Regulator (IPR) will be created to protect and enforce our right to privacy.  The IPR should, in theory, be able to assist with queries, provide the public with advice, adjudicate disputes and enforce its decisions.

Conversely, for the IT director, in-house counsel and a plethora of other corporate individuals, POPI represents a significant amount of work and change. By now, most of this work (or the preperation and reasearch thereof) is probably done or well on the way. Penalties could be harsh and compliance will be a must for any individual or company processing any personal information.

As pointed out by auditing firm Deloitte, POPI can be looked at as an opportunity for a value add. Current policies, procedures and contracting methodology can be reviewed and re-aligned to reap maximum benefit from from our rapidly evolving regulatory law environment. Strategies must be fluid and management teams must be geared for change, particularly in the ITC, supply chain and banking industries where the transfer of data is immense.

In an effort to save cost and find a quick-fix, some businesses (particuarly those burdered with excessive beurocratic structures) may approach this task with a tick-the-box, compliance effort - these businesses will get zero value from the exercise and probably be unable to capitalize on any potential value POPI may be able to add to the company concerned.

POPI is a complex and far reaching piece of legislation, but it if one adopts an attitude of opportnity, there are areas of the proposed act that may work for certain individuals and orginisations if executed and marketed in the correct fashion.  

Only time will tell whether the IPR will be a toothless animal or whether significant changes are on the horizon for the manner in which personal information is gathered, stored, transmitted and used. 

Many companies rely on personal information for statistical analysis, strategic decision making and marketing direction. A common misconception is that POPI makes it unlawful to use personal information. This is not the case. POPI introduces measures and concepts aimed at regulating the use of this data, and presumably, to protect society from unscrupulous individuals and companies collecting and abusing this information. 

Companies with solid internal structures and policies in line with POPI and the other recent consumer legislation should not suffer and should view current times of regulatory change as an opportunity to increase market share and aggressively approach the consumer centric society we find ourselves in.

Thursday, 26 April 2012

13 Million Reasons (online defamation II)

13 Million Reasons to keep it to yourself

Accountable? Of course!

An internet defamation case has ended in a couple from Texas, United States being awarded a whopping 13 million dollars. Anonymity on the internet is over. Loose and fast talk, even if anonymous, can be punished.

Although an argument can be made that freedom of expression in the United States is more jealously guarded than any other country on the planet, more and more online defamation matters are resulting in positive awards for those making the complaints and alleging defamation based on comments made online.

Ordinarily, the severity of the comments online will determine the monetary value a court awards a successful plaintiff. These amounts appear to vary wildly.  A cricket player being accused as a cheat was awarded ninety thousand pounds in the United Kingdom, a blogger from the United States was smacked to the tune of two and a half million dollars for accusing a company of being involved in illegal activities. More recently, a reported 13 million dollar penalty for child molestation allegations. Online defamation can be costly it seems.

Itll never happen to me

The controversial secrecy bill notwithstanding, freedom of expression is a South African constitutional right which most in South Africa revere. Political parties, journalists, NGOs and just about every bored DJ have dipped into the debate surrounding freedom of expression recently. 

How does this translate to online defamation?  Well, as the law currently stands, not too good for any person shouting their mouth off on Twitter or Facebook.

It'll probably won't happen to me is not the best thought process after a glass of red wine and an axe to grind. Think long and hard before venting online, or having a full blown argument with someone on a medium which can potentially be accessed by millions.

In the ever increasing social media and quick fix based society we live in, the murdered cliché of the world getting smaller is probably apt. Particularly if you consider the potential for cross border online defamation disputes.

Considered legal argument suggests that the time and place the defamation occurs is when the material is seen or read or observed, and not where it is published. If this is correct, then if both people happen to find themselves in the same country then perhaps the complexity of online defamation eases slightly.

However, given vast increases in internet penetration and the ease of communication with all parts of the globe, cross border disputes will arise. That raises various other questions about enforceability if the two protagonists are in different parts of the globe, but be that as it may, we all have a few more reasons to think twice before exploding or commenting viciously online.

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Sunday, 22 April 2012

Consumer Protection Act - returning goods

Returning Goods

A protected species

The regulatory framework created by the Consumer Protection Act (“CPA”) has effectively turned the South African consumer into a protected species.  The CPA brings South Africa in line with the consumer centric legislation guiding, amongst others, the United Kingdom and the United States.

In conjunction with the National Credit Act, the CPA provides the South African Consumer with arguably one of the most robust set of consumer laws and essentially compels most businesses to provide excellent service. This begs the question, does the South African consumer see the excellent service we are promised? Probably not.

In my last two personal interactions with a chain hardware store I got the distinct impression they were striving to provide service akin to a South African arm of government. This led me to critically considering the state of South African business and its willingness to comply with the CPA. It seems many are coming along kicking and screaming.

Returning Goods - as pleasant as the dentist

Clearly, the CPA is far reaching. For purposes of this article I will narrow my focus to a Consumer's right to return goods. This can be done in a number of circumstances, such as:

1.    A statutory cooling off period after the purchase of goods from direct marketing
Section 16 of the CPA provides that any goods purchased as a result of can be returned within 5 days of receiving the goods. The cost and risk of return is borne by the Consumer. Interestingly, the Electronic Communications and Transactions Act (“ECTA”) has a similar section regulating this situation in the "on line" word - ECTA affords the consumer 7 days as opposed to the 5 provided for in the CPA.

2. Goods purchased that were not examined before delivery

Section 20, read with section 19 of the CPA allows a Consumer to reject delivery of the goods if they, in summary, do not meet the quality or type one would reasonably expect. The Consumer may then return the goods and receive a full refund.

3. Goods not fit for purpose

Broadly, if a Supplier advises a Consumer that certain goods are fit or a specific purpose and it turns out they are unsuitable the Consumer may return for a full refund.

4. Implied warranty

In a nutshell, all goods must be reasonably suitable for the purposes for which they are generally intended, must be of good quality, in good working order and free of any defects. If goods do not meet these essential standards they may be returned for a full refund.

I have probably over simplified the rather verbose legislation dealing with returning goods, but practically, you may probably return your goods for a full refund if they fall within the broad spectrum of one of the four categories above. There are a few exemptions and one or two nuances but the long and the short of it is that if you buy something that is damaged, incomplete or is not fit for its intended use, you may return the goods for a refund.


Cash or credit? Typically, a retailer will choose to offer you a store credit so you spend your cash there all over again. You may, however, elect to receive a cash refund in certain circumstances.

The real world

By way of practical explanation let us look at an example of the typical South African retailer. Goods are purchased - in this instance a R900 drill. The drill is missing one of its critical components.  The drill can be returned, as a first port of call, in terms of the implied warranty. That seems simple enough. Unfortunately, it is usually not quite as simple as that.

In my last two experiences I have been treated like a liability rather than an asset. Made to feel like an insidious criminal rather than a welcome guest. That may be a slight dramatization, but the point is that South African Suppliers appear unwilling, in some cases, to conduct themselves in a manner befitting the spirit and purpose of the CPA.

Who pays?

Consumer centric legislation is bound to increase Supplier cost and force fair and honest terms, policies and procedures. Ultimately, the Consumer will bear this cost. Consequently, we, as Consumers, should always demand fair and accessible dealings with Suppliers.

The CPA provides us with a bill of consumer rights. As a progressive society, who will bear the cost of consumer centric legislation, inefficiency and arrogance should not be tolerated by the South African Consumer - particularly in light of our consumer bill of rights!

The onus is on business owners, particularly the large chain store groups, to shift their employees' philosophy to Consumers. I realize the generalizations I have used are sweeping, but the prevalent conduct in my last two experiences of returning goods has left a lot to be desired. This should not be the case and is indicative of South Africa's want for accepting mediocrity.

Saturday, 14 April 2012

Online defamation

Online defamation

Internet usage increasing exponentially

Given the vast amount of people using social media, and the increase in internet penetration, a legal query that is emerging more and more regularly is the following: how do I deal with online defamation?

At first blush it appears a relatively straight forward enquiry into the law of defamation. However, given the unique nature of the internet, the method in which one deals with this type of issue will depend on the nature of the defamation (how serious is it?) and the person or legal entity alleging defamation (individual or large corporate entity). I will expand on the reasons for this below.

It is becoming clear that social media is becoming a primary form of advertising and marketing for businesses and this trend is set to increase in 2012.  Social networks appear to have an endless pit of resources as shown by Facebook’s recent one billion dollar acquisition of Instagram. The ever increasing need for business to “go online” has spawned a new field of internet reputation management and advertising companies creating social media experts to manage online communication.

South African Defamation in a nutshell

The law of defamation in South Africa is based on the actio injuriarum, a Roman law remedy concerning liability for injury to personality. It is available for an intentional, wrongful act which constitutes an aggression upon person, dignity or reputation.

In order to have a valid cause of action, a plaintiff must show that the defendant, (a) published, (b) defamatory matter, (c) referring to the plaintiff.  Once the plaintiff has proved the existence of these elements, three presumptions arise. 

Firstly, that the publication was unlawful.  Secondly, fault or intention on the part of the plaintiff, and thirdly that the plaintiff suffered damage. 
In the ordinary course, a defendant in a defamation case has several defences open to it.  These are truth for the public benefit (published material must be true and in the publics’ interest to receive this material), fair comment (i.e.: editorial comment or a satirical piece) and privilege (i.e.: where there is a moral or social duty to publish the defamatory matter, and the recipient has a similar interest or duty in receiving it).

Online defamation

Simply, online defamation is the publication of defamatory statements on the internet.  Typically, these defamatory comments would appear in a social network environment (Facebook or Twitter) or on a website, blog or online forum.

As alluded to above, a key practical consideration is the nature of the defamation and the person or corporate entity concerned.  If the defamation attacks one in such a manner that the defamed person will suffer severe damage, it is probably worth enforcing the applicable legal rights.  A good example of this is former professional New Zealand cricketer Chris Cairns or Namibian journalist John Grobler.  In these two matters, the defamation concerned their professional integrity and the respective awards in their favour effectively cleared their names.

Conversely, a large corporate may have a different approach to certain defamatory comments.  This is because legal action will often exacerbate the problem and result in more harmful PR and online commentary. The fluid and dynamic nature of the internet means that, for example, if an allegedly defamatory statement is published on (for example) a message board of a corporate entity, the damage may already be done.  Pursuing action against an aggrieved customer will, in some instances, result in more harm than good – it is critical to evaluate the allegedly defamatory statement.  Deleting these messages or comments is probably not a good idea either – this will be picked up by the aggrieved and pointed out to all who wish to listen.  Again, this may result in more harm than good.

Each matter is obviously distinguishable on its own facts, but as a rule of thumb, where online defamation is concerned, discretion is often the better part of valour.  The traditional nature of legal remedies (i.e.: procedurally based and time intensive) means that a social media or internet comment may be long forgotten by the time the legal action has run its course. Many internet management specialists advise that, where possible, further conflict should be avoided and a “damage control” philosophy adopted. In most instances, I would agree with that.

Solving this type of dispute amicably is not always possible and in these situations the individual or business should probably seek the advice of an attorney to evaluate the pros and cons of any potential legal remedy.  Practically, when dealing with this type of issue, if one feels compelled to respond do so in a calm, objective manner.  Leave emotion out of it.  Also, one may consider approaching the website owner (the comment may be against terms of use), the Internet Service Provider of the user, or you could report a complaint with Google (if the comment is offensive, the website may be removed from Google searches index).

If the defamation is such that a response is warranted to protect personal or business reputation, it may be worthwhile contacting an attorney with practical experience to assist in formulating any responses and advising on the prospects of formal legal action. 

Wednesday, 11 April 2012

How anonymous are we and is anonymous accountable?

How anonymous are we and is anonymous accountable?

Social Networking

Social networking can no longer be looked upon as novel. The idea has inculcated itself in the fabric of modern society. I do not believe it can be regarded as trivial and will, in time, be an area of legal practice that is not unique or niche.

Traditionally, Africa, and South Africa, have been a back water in the area of law that can broadly be defined as technology law. The reasons are obvious but include a lack of necessity. That necessity is now probably upon us humble Africans, and more particularly, us South Africans.

Facebook and Twitter are two of the most prominent social networking websites. Statistics vary slightly but the latest data reveals that Facebook has 845 million active users. Twitter is said to have around 140 million active users. Both organizations are worth billions of dollars and dominate popular culture and main stream media. From politicians to sports persons to businesses, social media has engulfed us all.  It's here to stay, whether we like it or not.


How many of these users are located in Africa and South Africa you may ask. It is always difficult to produce a precise figure due to the fluid and variable nature of the data.  This notwithstanding, there are a few recent polls around.  An ispos Reuters poll, dated March 2012, shows that seven in ten South Africans use Social media. This is a staggering statistic considering that South African social media usage is similar to countries such as Russia, Sweden and Spain.

A February 2012 study by Portland Communication, How Africa Tweets, shows that South Africans are the most regular Twitter users in Africa with a quarterly total (Q4, 2011) of over 5 million tweets.  The rest of the African continent is not too far behind with countries like Nigeria, Kenya and Morocco generating over 3 million tweets in the same period.

It is undeniable that social media on the African continent is on the rise, particularly in South Africa.

What next?

Societies' natural inclination towards conflict will naturally exhibit itself online in a social media context. This may range from comments about work environment or colleagues, defamatory statements about character, corporate statements or even advertising.

In the United States and the United Kingdom case law and legal precedent is developing in the broader field of technology law. Critical questions around privacy and accountability are starting to be answered.  An ex-professional New Zealand cricketer won a Twitter defamation case in the United Kingdom.  Questions are being asked of employers seeking employees’ Facebook account user names and passwords.  Controversially, the Manhattan District Attorney has subpoenaed Twitter account information in a criminal matter.  This area of law is developing quickly.  It has very little choice.

Onto the African continent, and South African (with the necessity principle mentioned above in mind) has been slow to adapt.  A South African technology lawyer has accused South African lawyers of lacking foresight and being overly focused on a text and rules based system. 

In South Africa’s defence, there have been changes in civil procedure to introduce electronic pleadings (legal documents) and the introduction of legislation to cater for the ever increasing e-commerce society we find ourselves in. However, the development has been laborious and is lagging behind South African societies’ ever increasing need to conduct business and social activity online. 

Does anonymous exist?

No longer is the internet and social media the sole domain of teenagers or fame obsessed celebrities. The idea of anonymous behind the safety of a keyboard is over (if it ever existed). Anonymous does not really exist.  He or she has a verified IP address, account details with an internet service provider and social network website/s.  He or she has various other personal and public details readily available. Subject to certain software available, anonymous does not really exist on the internet, particularly in a legal dispute. That answers my first question in the title of this article. 

Onto the second question – is anonymous accountable? A slight misnomer considering I believe anonymous does not exist.  However, anonymous is a real person behind a computer and he or she is accountable for his or her actions – whether in the “real” world or online.

The legal issues that may arise online, as in the "real" world, are endless. Consider over 5 million statements or opinions online every 3 months – and this only takes into account one form of social media in South Africa, Twitter.  Consider the millions of transactions, statements, advertisements etc. on the likes of Facebook, Youtube, Google +, Pinterest et al. Granted, a large proportion of these statements, opinions and the like will be mundane and completely lawful but the proportion of offensive and potentially unlawful activity will continue to increase exponentially and is an issue that is becoming increasingly prevalent.

And now?!

I have purposefully left a number of issues open in this article and will endeavour to revisit those that have particular relevance to online legal issues affecting South Africa and beyond. 

A query starting to emerge more and more regularly is that of online defamation.  In other words, defamation on Twitter or Facebook.  The next article will focus on defamation online and practical solutions to solve these issues.