Understanding data privacy regulations in South Africa: Lessons from Meta's recent fine

Author: Marco Schepers

Service: Corporate, Mergers & Acquisitions, and Regulatory Compliance

In recent years data privacy has become a critical issue globally, and South Africa is no exception. The recent fine imposed on Meta Platform (the parent company of Facebook) by the Irish-based Data Protection Commission (DPC) has shed light on the importance of data protection and the need for organisations to comply with data privacy regulations.

Meta was issued with a €1.2 billion (R25 billion) fine for contravening the European Union’s data privacy law, the General Data Protection Regulation (EU GDPR) by transferring the personal data of Facebook users to servers in the United States and was ordered to stop transferring data collected from Facebook users in the EU to the US.

The DPC ruled that the Standard Contractual Clauses (SCCs) and additional safeguards implemented by Meta to justify their data transfers from the EU to the US were insufficient to ensure adequate data protection. The result was the breach of Chapter V of the EU GDPR, which governs the transfer of personal data to countries outside of the European Economic Area (EEA).

The DPC’s imposition of a significant fine on Meta serves as a wake-up call for businesses operating in South Africa. The case highlights the increasing scrutiny and enforcement of data protection regulations, emphasising the need for organisations to prioritise data privacy compliance to avoid severe penalties. There is no doubt that the Information Regulator, South Africa’s data privacy regulatory authority, will utilise this case as a stern warning to South African businesses that a similar fine is not too far away in South Africa should they breach South Africa’s data privacy legislation.

The Protection of Personal Information Act, 2013 (POPIA) is South Africa's primary data protection legislation which is aligned with the EU GDPR. POPIA is a complex piece of legislation that requires public and private bodies to take a proactive approach to its effective compliance. As a result, a pragmatic approach to POPIA is necessary and suggested.

To adopt a pragmatic approach to POPIA compliance, organisations should consider taking the following practical steps:

- Conduct a risk assessment: Organisations should identify and prioritise the areas of their data processing activities that pose the highest risks to personal information. This risk assessment will guide the organisation's compliance efforts and enable it to focus on the most critical areas to focus on as it relates to compliance with POPIA. The risk assessment requires the organisation matching its current operations and procedures with the compliance standard required in POPIA.

- Develop a compliance plan: Based on the results of the risk assessment performed by the organisation, the organisation should identify those areas which are not compliant with the POPIA standard and develop a compliance plan that outlines the measures it will take to comply with POPIA – this is also known as a ‘gap analysis’ as it seeks to identify the gaps between the organisations current position insofar as compliance with POPIA and that to which it is required to be in order to be compliant with POPIA. The plan should include a priority of compliance items to be addressed through remedial actions, timelines for the implementation of the measures and the resources required.

- Implement appropriate measures: The organisation should, based on the compliance plan developed, implement the appropriate remedial measures to address the risks identified in the risk assessment conducted. This will include prioritising the high-risk items being addressed first and may include implementing data protection policies and procedures, appointing a data protection officer, and implementing technical and organisational measures to protect personal information.

- Train staff: All staff members who process personal information in the course and scope of their employment roles should receive training on POPIA and the organisation's data protection policies and procedures. This would include understanding risks associated when processing personal information outside of the requirements of POPIA. The training of staff should also include appropriate training and skills development for information officers, as well as deputy information officers.

- Monitor compliance: The organisation should regularly review and monitor its compliance with POPIA, including conducting internal audits and ensuring that its data processing activities applied within the organisation remain aligned with the risk assessment initially conducted, but also in respect to any changes in the law which directly impact upon the application of POPIA.

The Meta fine has underscored the significance of data privacy compliance in today's digital landscape. Businesses operating in South Africa must prioritise data protection and ensure compliance with relevant regulations to protect their customers' privacy and avoid significant penalties. By taking a pragmatic approach, understanding the data privacy landscape, implementing best practices and fostering a data privacy culture, organisations can mitigate risks and build trust with their stakeholders in an increasingly data-driven world.

At Andersen in South Africa, we are here to assist organisations to take a pragmatic approach to their own POPIA compliance and ensure they are compliant in all respects with POPIA.

Contact Marco for assistance with Data Regulatory matters