Comment on the Open Democracy Bill
[B67-98]

COMMITTEE for PRIVATE DATA BASE USERS

Member organisations:
Banking Council of SA
Consumer Credit Association
Credit Bureau Association
Direct Marketing Association
Furniture Traders' Association
Life Offices' Association
S A Insurance Association

Introduction
This committee wishes at the outset to place on record its appreciation for the manner in which both its and its members previous comment on the Bill was dealt with.

There are tens of thousands of data bases of information in the private sector, many are very complex and serve a wide variety of requirements. The drafters displayed a commendable understanding of the need to make practical changes where these
would lead to better legislation.

Each member organisation is committed to the spirit of the Bill although some areas of concern nevertheless remain. Each member will be commenting separately on their specific industry sectors' difficulties.

We therefore wish to appeal to the parliamentary committees to carefully consider the broader ramifications before accepting any major amendments to the Bill. The constituent members of the umbrella organisations represented by this Committee represent a
huge portion of the South African service industry. They promote economic well-being and provide hundreds of thousands of jobs. Any changes which may unreasonably inhibit - or even prevent -this contribution to society will, we respectfully submit, be a
disservice to our country.

This Committee appends herewith its written comments which it would like to expand on orally at any hearing of the Select and/or Portfolio Committees of Parliament.

Please, therefore, inform us of the date/s and times of any such hearings and confirm that we will be allowed to present our case.

COMMENT ON THE OPEN DEMOCRACY BILL

Section 1(1)(viii)
The definition of 'inaccurate' needs to be expanded to take account of the nature and intended uses of the information. This is the trend in other countries' data privacy legislation.

We believe the current wording will lead to endless disputes about what constitutes a 'complete' record.

Section 50(2)(d)(i)
There is much concern that the production, faxing or E-mailing of copies of identity documents will be abused, and unauthorised persons will have access to information. There is nothing easier than making an 'official' stamp to certify an ID book and the
activity is made even easier by fax and E-mail. The subsection should give the private body the right to satisfy itself that identity has been proved.

Section 51(8)(c)
Provision should be made for the deleted information to be held for no longer than it would have been held if not deleted. In terms of this subsection deleted information must be held as long as the entire record. This is impractical and expensive and serves no purpose.

Section 51(9)(a)
Provision should be made for requests to be (accurately) summarised where they are too long to be practically and cost-effectively stored.

Section 55(h)
Subsection (h) as currently worded could see regulations made which conflict with subsections (a) to (g). This is clearly not the intention otherwise why were the first seven subsections included in the Bill. Subsection (h) should make it clear that it is there to cater for other matters not catered for in (a) to (g).

There is also concern that the subsection imposes an absolute right to privacy and may prevent the making of suitable regulations in some instances where a reasonable diminution of the right to privacy is desirable.

Section 57
The current wording implies a subjective interpretation of a person's expectations. It is submitted that this should be amended to make the test objective.

Section 58(1)(b)
Withdrawal of consent should not be allowed where it is clearly done to prejudice another party to an agreement to which the person is a party. This should be made clear in the Bill to guide the drafters of the regulations.

Section 59(2)
Provision should be made for persons who responded and actually refused consent.

Section 59(4)
All three subsections should be included, not only 1 & 3.

Section 86
In this section the Minister consults with the Human Rights Commission when making regulations. This is clearly to ensure that individuals' rights are looked after. However, there are three main parties to this Bill: government, persons (mainly individuals) and private bodies (mainly business concerns). Only the first two have input into regulation making.

It is respectfully submitted that this is contrary to the requirements of section 33 of the Constitution of the Republic of South Africa [read with S.8(4)] which provides that everyone (including the private bodies defined in this Bill) has the right to administrative action that is lawful, reasonable and procedurally fair.

It is further submitted that neither the minister, his department nor the HRC has the experience required to make regulations with which private bodies can always comply in
practice.

As stated in the introduction to this submission each organisation, and their constituent members, are committed to the principles embodied in the Bill. However, many have involved computer systems used for scores of different purposes. It would be most unfortunate if unworkable regulations made this commitment impossible.

Provision should therefore be made in the Bill for the establishment of a private body consultative committee representative of the private bodies affected with whom the
minister must consult where appropriate.

Rowan Haarhoff
Committee Chairman
7 August 1998