PRIVACY

In South Africa, our common law, section 14 of the Constitution and by the Protection of Personal Information, Act 4 of 2013 (POPI) protects the right to privacy.

Section 14 of the 1996 Constitution of the Republic of South Africa provides for an express, justiciable right to privacy. It states:

“Everyone 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;

(d) the privacy of their communications infringed.”

Certain statutes also compel organs of the state or other parties to protect private information obtained from the public, such as the National Health Act 61 of 2003; the National Credit Act 34 of 2005; the Consumer Protection Act 68 of 2008; the Electronic Communication and Transactions Act 25 of 2002; and the Promotion of Access to Information Act 2 of 2000.

Privacy is a valuable aspect of personality. Data or information protection forms an element of safeguarding a person’s right to privacy. It provides for the legal protection of a person in instances where their personal information is being collected, stored, used or communicated by another person or institution.

The recognition and protection of the right to privacy as a fundamental human right in the Constitution indicate its importance. Like its common law counterpart, the constitutional right to privacy is not absolute but may be limited in terms of law of general application and has to be balanced with other rights entrenched in the Constitution.

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