privacyRecent events have seen a very unfortunate confusion arising between the Protection of Information Bill and the Protection of Personal Information Bill. Due to the similarity of the names, for the purposes of this article, it will be easier if the former is referred to as the “State Information Bill” (which, it is submitted, is a more accurate description in any event). Hopefully, this short article will assist readers in clarifying the distinction between these two instruments of proposed legislation.

In summary, the State Information Bill applies to state information (generated, acquired, or received by the state or in its possession or control) and regulates the handling, protection and classification of state information. The Protection of Personal Information Bill has a vastly different purpose and is aimed at regulating the processing of personal information, protecting persons (both natural and juristic) from the abuse of personal information and providing rights and remedies to victims of the unlawful processing of personal information.

The recent widely published outcry by the media (both locally and internationally) relates primarily to the wide discretion granted in terms of the State Information Bill, which allows the heads of organs of state (and their designates), to classify state information. This has raised concerns that an unscrupulous government may abuse these powers in the interests of the ruling party, allowing it to hide its failures or abuses of power that may embarrass it. The vague definitions against which state information is to be classified, particularly the rather obtusely worded concept of “National Interest”, do little to allay these fears. This concern is, in the view of the Bills’ critics, exacerbated by the absence of an independent appeal mechanism.

These concerns and the draconian penalties contemplated in the Bill have received vehement criticism from the media, which has voiced its fears that in the absence of a public interest override in the proposes legislation it may be prevented from reporting on matters in the public interest and fulfilling its role in ensuring freedom of expression. This, the critics argue, limits unreasonably the media’s rights of access to state information and violates the right to media freedom. Commentators outside of the media have also been severely critical of the Bill, stating that it threatens the constitutional right of Freedom of Speech and in a number of instances there have been assertions that, if the Bill is enacted without substantial amendment, the intervention by the Constitutional Court will be sought. In essence, while there is universal recognition that legislation of this nature (providing for secrecy in the interests of national security) is necessary, the strongly held view of its critics, is that in its present form, the Bill upsets the fine balance that must be maintained between the authority of government to protect national security and the transparency that characterises an open democracy.

In stark contrast to the criticism of the State Information Bill, the Protection of Personal Information Bill has been widely welcomed as a necessary protection of the privacy rights that are enshrined in our Constitution. Criticism of the Protection of Personal Information Bill was principally levelled at aspects of the drafting rather than its substance and it is generally acknowledged to be an important step in aligning South African law with the rapidly evolving jurisprudence of information privacy. This is not only crucial in protecting the citizens of South Africa from having their personal information abused and privacy violated, but also to ensure the free flow of information critical to South Africa remaining a commercially vibrant participant in the information revolution that is re-shaping almost all areas of human interaction.

The confusion that has arisen threatens to adversely impact the positive public sentiment on the Protection of Personal Information Bill. As it is so widely welcomed and is thought by most commentators to be long overdue, this will be a grave pity. One can only hope that the media and government will strive to ensure that clarity is provided and the true nature and intent of the two bills, (which despite similarity of the names given to them, are vastly different) is clearly understood by the public. The change of the name of the Protection of Information Bill to the “Processing of State Information Bill” or “State Information Bill” would be a step in the right direction.

Contributed by:
Mark Heyink
Information Attorney and Information Security Consultant.


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