16 Oct 2013
Personal information must be processed lawfully and reasonably, in a manner that does not infringe the privacy of the tenant (individual or company), by gathering as little tenant information as possible and reasonable in the circumstances, and with the consent of the tenant or when screening the potential tenant.
?The Bill gives expression to the right to privacy provided for in the Constitution. The right to privacy includes the right to protection against unlawful collection, retention, dissemination and use of anyone?s personal information. The Bill is comprehensive and regulates the manner in which personal information may be processed, by establishing conditions in harmony with international standards that prescribe the minimum threshold requirements for the lawful processing of personal information?.
What remains now is for the Bill which was signed by our National Assembly, is for it to be translated into Afrikaans and then signed by President Zuma. At that point, the Bill will become law.
What is personal information? Be careful when screening tenants or entering into leases with tenants - of every individual?s right, as well as every company?s right, to privacy. The legal right of an individual to privacy is based on Section 14 of the Constitution of the Republic of South Africa.
?Personal Information? is extremely widely defined in POPI and includes, inter-alia, race, a name, date of birth, phone number (home and cellular), work and home address, identity number, passport number, banking information or income (of a company or individual), gender, contact details, personal opinions, private correspondence, financial information, and any other information at all which is deemed to be personal. Personal information applies to tenants (and, in fact, all people and entities) who are both companies and individuals.
What is the aim of POPI and what must the Landlord ensure compliance with in order to ensure that the Law is being followed? Personal information must be processed lawfully and reasonably, in a manner that does not infringe the privacy of the tenant (individual or company), by gathering as little tenant information as possible and reasonable in the circumstances, and with the consent of the tenant or when screening the potential tenant.
What are a Landlord?s responsibilities under POPI?
POPI governs how landlords may collect, store, record, use and disclose personal information of their tenants or potential tenants (when screening tenants). POPI states that landlords must notify tenants (or potential tenants) of their purpose for the collection, storage, recordal, use and disclosure of personal information. Moreover, there is now a duty on landlords to have high standard of security in place from an IT point of view, when storing information electronically, whether in the cloud or on the landlord?s own IT systems. The landlord must also protect a tenant?s (or potential tenant?s) personal information in the landlord?s custody or control by adopting safeguards to prevent unauthorised access, use, disclosure, loss, destruction, copying or modification of any personal information. A landlord must respond to a tenant?s (or potential tenant?s) request for access to their personal information by providing the tenant (or potential tenant) with copies of records in the landlord?s possession or control. A landlord must also tell the tenant (or potential tenant) how their personal information has been used and to whom it has been disclosed.
Can a landlord ask a third party for a tenant?s (or potential tenant?s) personal information?
No. The landlord, whether screening a potential tenant or entering into an Agreement of Lease, has to have the consent of the person whose personal information is being disclosed. Can a landlord disclose one tenant?s personal information to another tenant or landlord without consent?
No. POPI requires that landlords obtain the consent of their tenants (or potential tenants when screening), before disclosing personal information to third parties (with certain exceptions, such as state security). What are the principles on which POPI operates?
The 8 conditions require that personal data shall:
It is to be noted that non-compliance with the Act , the basic requirements of which are followed by this Policy, can potentially lead to claims for civil damages (including punitive damages), administrative fines of up to R10 million or criminal prosecution where unlimited fines and imprisonment of between 1 and 10 years are prescribed. - Marlon Shevelew