With reference to the latest draft of the Open Democracy Bill published for comment, we submit the following general and specific comments on the Bill for consideration by the Parliamentary Committees on Justice which are dealing with the Bill.
1. General Comments:
1.1 The government is to be congratulated on the latest version of the Bill, which includes several improvements from prior versions and which improves its overall impact.
1.2 However, there are still areas which, we believe, could be simplified or amplified to increase its workability, and prevent subsequent unnecessary confusion and uncertainty.
1.3 Several sections of the Bill contain, in great detail, obligations and requirements which will be imposed on government bodies (as defined) and the Human Rights Commission (e.g. sections 4(1), 5, 6, 7, 14, 27, 82, 83).
It is not clear whether the practicalities of these impositions, in law, have been costed or assessed from a practical point of view. It may be preferable to eliminate the detail from the Bill, and include it in regulation which is more pragmatic, flexible and dynamic.
1.4 This presentation covers aspects which, inter alia, affect the banking sector. It should therefore be read in conjunction with the presentation by the Committee for Private Database Users, of which we are a member.
2. Specific Comments:
1.1 Section 1 – Definition of "inaccurate":
The current definition for "inaccurate" refers to "incomplete". By nature, all information or records are likely to be "incomplete", and therefore disputes could arise in practice over this definition. Both the Australian and the New Zealand Information Privacy Principle, in their principles on "accuracy" (which is the opposite of inaccurate) contain concepts of "reasonableness, i.e. to clearly circumscribe the concept of complete (or incomplete):
"such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, up to date, complete, relevant and not misleading."
It is recommended that the definition of "inaccurate" be amended by including a similar qualification of reasonableness, e.g.
"Inaccurate, in relation to a record, or information contained therein, established under circumstances of reasonable care having regard to the purpose for which the information is prepared, means incorrect, incomplete or misleading."
1.2 Section 4 (1):
This section imposes a duty on every governmental body (as widely defined). It allows government no discretion in the application of the section. It is recommended that the word "must" be replaced with "should, as may be required."
1.3 Section 5 (2) (c):
It will be impossible for the HRC to publish, in the manner dictated by this section, "the manner and form" in which individuals must interact with the widely divergent private sector to access information or correct personal information held by a private body. This sort of standardised specification may work with government, but would be impossible with respect to the diversified and competitive private sector. It is recommended that section 5(2)(c)(ii), and the words "a private body and" in section 5(2)(c)(iii) be deleted.
1.4 Section 6 (1) (d) (ii):
This section has several references to "bank." The concept "bank" is not defined, but obviously refers to a "personal information bank." It is recommended that the word "bank" be clearly described, either in the definitions in section 1, or with the description "personal information" or "data" wherever it is used.
1.5 Section 50 (2) (a):
It is important that the information officer of a private or governmental body, have reasonable proof that the requestor is entitled to the personal information requested. Written requests such as faxes, email and letters facilitate the forging of identity documentation or other proof of identity. This could put an individual's right to privacy at risk. This is particularly important in the banking sector, where client confidentiality is important.
In order to ensure that appropriate procedures are put in place to safeguard that client confidentiality is maintained against unauthorised access, it is recommended that the following words be added at the end of section 50(2)(a):
"the request must be in such a manner that the head of the private body concerned can establish beyond reasonable doubt, the identity of the requester concerned."
1.6 Section 55 (g):
Given the capacity for consent to use or disclose information to be withdrawn (in terms of sections 58(1)(b) and 59(3)), an anomalous situation could occur where an individual attempts to withdraw consent to disclose in breach of prior contractual commitments. This could, for example, occur where a borrower withdraws consent for a lender to notify a credit bureau just before he or she defaults on loan repayments.
We presume that section 55 (g) has been included to cover these circumstances, i.e. the loan contract requirements which contain consent can still be fulfilled. Withdrawal of consent can therefore not override prior contractual obligations.
Should this not be the case, then the capacity for consent to be withdrawn in terms of contractual obligations (e.g. relating to loans, surety agreements, guarantee agreements, etc.) needs to be proscribed.
1.7 Section 56 (m); (n):
Loan defaulters are a serious cost factor across the whole economy. All pricing for goods and services includes a premium to cover bad debts. Honest borrowers and consumers therefore pay to subsidise the dishonest ones. Experience shows that most loan defaulters repeat this behaviour, i.e. those honest debtors who fall on the occasional hard times make every effort to repay their debts when they are able to.
It is obviously for this reason that this section confers on governmental bodies certain privileged access to information held by other governmental bodies in order to follow up on bad debts. It is recommended that section 56(m) be amended by including the words "or a private body" after every occurrence of the words "governmental body," as the private sector has the same problems in following up on defaulting debtors as the government does.
Similarly, section 56(n) as currently worded favours one party (the recipients of a payment), to the exclusion of a large number of other parties in the economy (those owed unpaid debts). It is therefore recommended that, if the proposal above for section 56(m) is accepted, this section be deleted, as the amended section will cover this eventuality.
1.8 Section 59:
This section is welcomed, as it will allow for the orderly phasing in of the various requirements. In particular, the acknowledgement of the practical impossibility of obtaining specific consent on the vast body of existing information is essential.
1.9 Section 70 (7):
This section, as worded, rewards inertia or failure to act by the head of a governmental body when he or she fails to act on an internal appeal. Instead of deeming the appeal to have failed, the section should be reworded to ensure that the appeal succeeded.
It is therefore recommended that the word "dismissed" be replaced by "granted"
1.10 Section 82 (1) (a):
It is unclear what the definition of "private bodies which exercise substantial influence over the nature of the South African society" is. This is very subjective, and would be open to dispute. It is therefore recommended that the words "as well as private bodies……South African society" be deleted.
Conclusion:
This is an important Bill, required for the working of an open and transparent society and democracy. However, it is equally important that the Bill be pragmatic, workable and affordable. We believe that, with some relatively minor amendments, this can be achieved.
We thank you for the opportunity to comment on the Bill, and are available to answer any queries which may arise.