Tayyibah Suliman and Mukelo NgobeseThe evolution of cloud computing introduces a number of complexities for the application of contemporary data privacy and protection laws in the cloud-based environment. The flexibility of cloud-based services allows for these services to be provided to numerous data subjects across various jurisdictions by any number of service providers located across the world.

On 24 April 2012, the International Working Group on Data Protection in Telecommunications published its Working Paper on Cloud Computing – Privacy and Data Issues, which is intended to implement data protection standards within the cloud. Although the guidelines detailed in the Working Paper are not mandatory, it appears that the intended approach to data protection in the cloud is one of uniformity, with a view to ultimately developing best practice based processing of personal information.

The recommendations under the Working Paper highlight some of the risks and complexities associated with cloud computing. The overreaching nature of the Working Paper will serve to ensure that there is no lowering of general data protection standards for processing personal data in the cloud. The Working Paper specifically advocates the following general recommendations:

  • Carrying out privacy impact and risk assessments prior to embarking on cloud computing projects.
  • Development of practices by cloud service providers to ensure greater transparency, security and accountability regarding information on potential data breaches; and also more balanced contractual clauses to promote data portability and data control by cloud users.
  • Research, third party certification, standardisation, privacy by design technologies and other related schemes in order to achieve a desired level of trust in cloud computing.
  • Legislative reassessment of the adequacy of existing legal frameworks allowing cross border transfer of personal information and consideration of additional privacy safeguards.
  • Accounting for independent audit trails with regards to the location of the personal information.
  • Continuity in the provision of information by data controllers to privacy and data protection authorities.

These recommendations are aligned to the general principles set out in the European Union and Safe Harbor data privacy frameworks.

The Working Paper also provides more specific recommendations, on 'best practice', 'controllers', 'cloud service providers' and 'auditing'. These specific recommendations contemplate the implementation of technical measures that can be used to determine the exact physical location where personal information is held and stored, with an audit trail specifying any copying and/or deletion of personal information. In addition, the Working Paper includes a suggestion for encryption of all personal information (both at rest and in transit) and also recommends the conclusion of agreements between data controllers and cloud service providers to expressly designate and limit the physical locations where personal information will be processed. The Working Paper specifically provides that the cloud service provider should not be entitled to use personal information in the cloud for its own purposes.

It is likely that significant steps will need to be taken by cloud service providers in order to comply with the recommendations under the Working Paper and/or applicable data protection laws, which may potentially require substantial financial resources, including for procuring and implementing the appropriate technology required to give effect to the recommendations and/or laws.

In the South African context, the principles under the current draft of the Protection of Personal Information Bill (PPI) (in particular, the provisions which relate to the conditions for lawful processing of personal information and trans-border information flows) can be aligned to the recommendations under the Working Paper. The real test for cloud service providers and their customers will however be in the practical implementation of the principles under PPI. Many of the recommendations under the Working Paper will serve to provide guidance in this respect, particularly in the measures which need to be implemented to maintain a level of transparency in the supply chain of personal information in the cloud.

Contributed by:
Tayyibah Suliman, Senior Associate and Mukelo Ngobese, Candidate Attorney,  Technology, Media and Telecommunications practice, Cliffe Dekker Hofmeyr

Cliffe Dekker Hofmeyr is one of the largest commercial law firms in South Africa with some 115 directors/partners and 250 qualified lawyers located at offices in Johannesburg and Cape Town. They lawyers specialise in services covering the complete spectrum of business legal needs in 11 core areas of practice. The firm also has dedicated sector-led teams consisting of lawyers with experience in a wide range of industries and the public sector.

Cliffe Dekker Hofmeyr is the South African member firm of DLA Piper Group, an alliance of legal practices, which includes firms with offices around the globe that are affiliated to members of the DLA Piper Practice but are not themselves members of it.

 

 

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