The Protection of Personal Information Act, 2013 (POPIA) has been in effect in South Africa since 1 July 2021. POPIA provides a framework for regulating the collection, processing, storage and sharing of personal information of individuals and juristic persons and its implementation heralded widespread changes in the insurance industry. Now, 18 months later, we can reflect on how the industry has adapted and look ahead to how it will continue to impact us in the future.
Changes to the insurance industry
Since the implementation of POPIA, the insurance industry has undergone significant changes in the way it collects, uses, and stores personal information. Companies have had to invest in technology and personnel to ensure they comply with these new regulations, as well as mitigate against ongoing cyber threats.
Companies have had to adapt to the new requirements of POPIA. They are now required to register with the Information Regulator and appoint an information officer, create privacy policies, review supplier contracts, conduct privacy impact assessments, and provide customers with increased transparency about how they use their data. Companies must also implement technical and organisational measures to secure personal information, such as encryption and access controls, and ensure the necessary compliance steps are taken when data is transferred to other countries.
In addition, companies must now notify customers in the event of a data breach and report the breach to the Information Regulator as soon as reasonably practicable. The Information Regulator is South Africa’s regulatory body mandated to monitor and enforce compliance by public and private bodies in terms of both the Promotion of Access to Information Act, 2000 (PAIA) and POPIA. This has led to increased awareness of data privacy among businesses, as well as the importance of investing in secure systems and implementing processes to protect personal information.
A number of insurers now offer cyber-related insurance products. With the exponential increase in cyber threats to businesses in South Africa, these products have become costly to procure.
Customers in control
The implementation of POPIA has provided customers with greater control over their personal information. Customers now have the right to request access to their personal information held by companies, as well as the right to request that their personal information be corrected if it is inaccurate or deleted if it is no longer necessary. Customers also have the right to refuse to consent to the processing of their personal information for direct marketing purposes.
POPIA has also provided customers with greater transparency, as companies are now required to inform customers about the purpose for which their personal information will be used, who it will be shared with, and how long it will be kept.
Despite the benefits of POPIA, there have been some new challenges that have emerged as a result of its implementation. One of the biggest challenges has been the limited resources and capacity of the Information Regulator to effectively enforce POPIA. This has led to a lack of consequences for non-compliance and a lack of deterrent for businesses that continue to violate these laws.
Another challenge has been the lack of awareness among customers about their rights under POPIA. Many customers are not aware of the steps they can take to protect their personal information, or what to do in the event of a data breach. This has led to a lack of accountability among businesses and a lack of empowerment for customers.
There is also the ever growing threat of data breaches. With the increased focus on data privacy and cyber security, the likelihood of data breaches has also increased. This has resulted in increased pressure on organisations to prevent data breaches, to have proper breach response plans in place and to procure cyber insurance products.
Implementing the new policies and procedures required by POPIA can be expensive, and some businesses may struggle to keep up with these costs. Some businesses received incorrect POPIA compliance advice, and will need to incur additional costs to redo their compliance exercises.
Overall, the implementation of POPIA has had a positive impact on the protection of personal information in South Africa and sets us on a level playing field with global data protection best practice. Businesses have had to adapt to the new requirements of POPIA, customers have greater control over their personal information, and there has been increased transparency in the use of personal information. However, there have been some new challenges that have emerged as a result of POPIA’s implementation, and it is important that these challenges be addressed in order to ensure the continued protection of personal information in South Africa.
The Regulator is on the road to increasing its resources and capacity and we should see the difference over the next 12 months. Despite these constraints, the Regulator has released several Guidance Notes to provide guidance on various aspects of POPIA. These Guidance Notes cover topics such as processing special personal information, personal information of children, personal information of voters by political parties, the obligations of information officers, applying for prior authorisation, exemptions from lawful processing conditions, developing codes of conduct, completing security compromise notification forms, and using PAIA. These Guidance Notes aim to assist responsible parties in complying with POPIA.
As customers’ awareness about the many rights they hold under POPIA increases, we will see an increase in the number of data subject access requests and access to information requests received by companies. Given that the protections under POPIA extend to juristic persons, we may also see these requests emanating from other businesses, in addition to individual customers. We are also likely to see an increase in data privacy related litigation in the coming months.