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Protection of Personal Information Solution

Privacy Compliance

POPI compliance.

© 2009 Deloitte Touche Tohmatsu

History of the Bill

In October 2005 the Law Commission finalised its investigation into the status

of privacy protection in SA

The Commission found that privacy law was lacking regardless of the Right to

Privacy in the Constitution

The Commission recommended a new and separate law to deal with the

protection of personal information

After the review of more than 5000 submissions on the original text of the Bill,

a revised version was approved by cabinet during August 2009

The Protection of Personal Information Bill 2009 is now heading for approval

by Parliament


International comparison


Scope of application

In terms of section 3 the Bill applies to the following:

The processing

of personal information

captured in a record

by a responsible

party


Your duties and obligations

Companies will have to:

Principle 1: Collect PI from DS directly - unless public information or required by law or in DS

interest

Principle 2: Collect PI for specific, explicit and lawful purpose

Principle 3: Only process PI if DS consents – unless required by law or contract necessitates or

in DS interest

Principle 4:Ensure that any further processing of PI is compatible with the stated purpose of

collection or in compliance with law

Principle 5: Do not retain for longer than necessary or required by law or consented to - then

destroy in compliant manner

Principle 6: Facilitate that PI remains complete, accurate and updated


Your duties and obligations

Companies will have to:

Principle 7: Notify the Regulator and appoint information officer

Principle 8: Protect the security and integrity of PI – self audit

Principle 9: Operator requirements – security, confidentiality and written contracts

Principle 10: Unauthorised access or loss – notifications

Principle 11: DS report requests – correction requests

Principle 12: Direct marketing – consent or a client

Principle 13: Cross border flow – consent, law or contract

Principle 14: Special PI – race, politics, health

The Consumer Protection Act

A law which leaves very few areas of your business unaffected.

• The Act was adopted on 24 April 2009.

• Sections allowing for the making of regulations and formation ofthe Commission became operative on 24 April 2010.

• The section of product liability also became operative on24 April 2010 though claims under the section can only bebrought on 24 October 2010.

• Companies must comply with all the provisionsof the Act on 1 April 2011.

Commencement of the Act:

The Act applies to –

Every transaction in the RSA

• Agreements

• Supply of goods

• Provision of services

• Agreements

• Supply of goods

• Provision of services

For the promotion

• Advertisements

• Display of goods

• Offer of services

• Advertisements

• Display of goods

• Offer of services

Or the supply

• Sale

• Rental

• Exchange

• Services

• Sale

• Rental

• Exchange

• Services

Of goods and services

• Anything for human consumption or use

• Gas

• Water

• Electricity

• Interest in land

• Anything for human consumption or use

• Gas

• Water

• Electricity

• Interest in land

To a consumer

• Defined on next slide

• Defined on next slide

A consumer is defined as –

natural people

companies, close corporations, trusts, partnerships whose annual turn over or asset value is under R2 000 000

all clubs, voluntary associations, irrespective of their asset value or turnover

all franchisees, irrespective of their asset value or turnover

Exceptions to the scope of application

• Businesses above the threshold

• Excluded from the provisions of the CPA are:

Goods or services supplied to the State Credit agreements under the NCA Services under an employment contracts Collective bargaining agreements

• Excluded from services definition:

Financial services governed by FAIS Insurance services (for 18 months)

• Where contracts or advice is excluded, the goods are still governed.

Advanced Bookings

• Right to cancel any advance bookings

• Reasonable deposit and cancellation fee may be charged

• Charge is unreasonable if it exceeds a fair amount taking into account –

length of the cancellation notice given reasonability of resellingnature of the goods/services

• Exclusion if cancellation is for death/hospitalisation

Reference – section 17

Overbooking

• If a reservation or booking can’t be honoured –

repay any payment

pay interest

pay costs directly incidental to the overbooking

Implied warranty of quality

• Warranty is in respect of goods being –

reasonably suitable for purpose intended good quality, in good working order and free of

any defects useable and durable for a reasonable period Standards Act compliant goods will meet a purpose

specifically stated by consumer

• “Ticks” DON’T APPLY where can prove theconsumer was expressly advised of the particular condition of the goods and accepted this


Implied warranty of quality

• Warranty is in respect of services being –

timely performance and completion timely notice of unavoidable delay manner and quality generally expected use, delivery and installation of goods free of

defects and of quality generally expected

• If warranty breached -

remedy defect, or reduce price proportionately


Periods of the Implied Warranty of quality

• Goods sold – 6 months – joint and several

• Parts and Repairs – 3 months

Consumer may choose: “refund/repair/replace”

• Failed Repairs on goods supplied – 3 months

Consumer may choose: “refund/replace”

• Services – indefinite warranty

Consumer may choose: “discount/ re-performance”


Product Liability

• Joint and several liability – producer, importer, distributor, retailer

• In respect of defective, failed, hazardous or unsafe goods or good in respect of which insufficient instructions or warnings were given

• At the time that the good was supplied

• Strict liability

• Certain exceptions do exist, are cold comfort


What are you liable for?

Damages resulting from –

• Death or injury to a natural person

• Illness of any natural person

• Loss of, or physical damage to movable and immovable property

• Economic loss resulting from the abovethree


Product Labelling and Trade Description

• Means any description of goods and services, includes labels, signs, packaging, brochure, proposals, adverts

• Must be accurate and not misleading in any manner

• Must not knowingly display a misleading or incorrect label/ description



Implied Warranty Product Liability

When does it apply?

If goods aren’t –

• Reasonably suited for intended use

• Of good quality or in good working order

• Reasonably useable and durable

• Standards Act compliant

• Goods will comply with a specific stated purpose

If goods are–

• Unsafe

• Fail

• Defective

• Hazardous

• Inadequate instructions or warnings given

What are you liable for?

• Refund/Repair/Replace for 6 months on goods

• Warranty on workmanship for 3 month

• Refund/Replace for 3 months on failed repairs

Damages resulting from –

• Death or injury

• Illness

• Damage to movable and immovable property

• Economic loss resulting from the above 3

Comparison

Direct marketing

• Defined as any approach in person or by electronic means

• Have the right to discontinuation or block

• Cannot charge for “opt out”

• Obligations to ensure an outsourced service provider complies

• 5 day cooling off period for full refund

• Advise client of cooling off period

• 15 days once good is returned to pay refund

Reference – section 11 and 16

Excludes “ECTA”

transactions

Customer Loyalty Programmes

• Information disclosure

• Reward must be cash equivalent

• Restricted availability – 90 day maximum

• Sections also apply to people whoparticipate in such programmes


Bait Marketing

• Cannot misleads the consumer about actual availability of goods at the advertised price

• Must honour all goods expressed at a specific price to the expressed limits

• It is a defence to the above if the supplieroffered an equivalent good within a reasonable time at the advertised price during the promotion


Negative option marketing & Catalogue marketing

• Negative option marketing is prohibited

• Catalogue marketing is an agreement to supply goods or services which is not concluded in person (eg. telephonic, fax or postal), and thus there was no inspection.

• Catalogue marketing requirements -

supplier details sales record details policies – cancellation, returns,

exchanges, refunds & complaints

Reference – section 31 & 33

Trade Coupons

• Given for free as a gift or as a prize or discount - “promotional offer”

• Does not apply to franchises, loyalty programmes or promotional competitions

• Specific information to be disclosed

• Be able to meet anticipated demand


Promotional Competition

• Promotional competition – a game, scheme, competition or system to distributed prizes by chance

• Win can’t be subject to undisclosed conditions

• Publish rules

• Independent process and winner

• Record keeping


Voucher and Pre-payment

• Gift voucher: pre-payment is buyers property until discharged or 3 years

• Pre-payment (for specific service or membership): pre-payment is buyers property proportionately

• Deposit: held in trust for buyer

Reference – section 63, 64 and 65

Complexity of contract information

• The Act requires that all information provided to a consumer must be in plain language, including contracts.

• All contract information must be suitable for the consumer –

for whom the contract is intended;who is assumed to have average literacy skills;who is assumed to have minimal experience as a

consumer.

General contract principles with consumers

• “Unfair, unreasonable or unjust” as previously mentioned is where the supplier’s contract is –

excessively one-sided in favour of any person other than the consumer or user;

so adverse to the consumer as to be inequitable;

a false, misleading or deceptive representation;

where the consumer’s attention should have been drawn to the term as is required in terms of the Act.

• The supplier may not knowingly allow any other person to enter any terms of contracts which are contrary to the Act.

Fixed Term Contracts

• 40 to 80 day notice to expiry

• Month to month automatic renewal

• 20 day cancellation notice

• Liable for amounts due up to date of termination and reasonable cancellation charge

• Minister may prescribe maximum durations


Excludes transactions

between legal entities

irrespective of threshold

Franchises

• Franchisees are considered consumers irrespective

• Agreements must be in writing

• 10 day cooling off period to cancel without penalty

• Certain sections of the CPA don’t apply:

bundled goods advance bookings delivery of goods catalogue marketing over booking


Dean Chivers

Deloitte Touche Tohmatsu

Private Bag X6

Gallo Manor 2052

South Africa

Dean ChiversDirector

Tel: + 27 (011) 806 5159

Mobile: +27 (0)82 415 8253

[email protected]

Member of

Deloitte Touche Tohmatsu

mailto:[email protected]

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