In my July article I gave a brief summary of the proposed Protection of Personal Information Bill (POPI) and highlighted the impact that such legislation will have on businesses. This was followed by an article explaining subsequent consequences POPI might have on cloud computing.
For many however, this was just more articles on another piece of legislation, which until now, was a draft bill marred by years and years of delay. To be honest, it was the oldest bill in Parliament, there since 2009, never mind the fact that work on it already started at the beginning of the century. Least to say, interest in POPI dwindled and many among us started doubting any early release, enactment or promulgation of POPI.
I even had some clients telling me that they shifted POPI remediation to the bottom of their priorities and others even took it so far by removing it entirely from their corporate to-do list. How wrong they were.
The National Assembly approved POPI on the 11th of September 2012, leaving only the National Council of Provinces (NCOP) in its wake as a last hurdle of formality before we see enactment.
In its defence, to be quite honest, there was a good reason for all the delays. It is no easy piece of legislation. In fact, while assisting the drafters with POPI in parliament, I was told that this is the most difficult piece of legislation they had ever embarked on, never mind for those organisations striving for compliance.
My years of experience in this field necessitate me to concur and I only have this message to businesses across all sectors: “Now is the time to embark on your POPI project.”
But why, you may ask.
There are different reasons for different sizes of companies and this might influence the answer, but one thing is for sure, irrelevant of your organisation’s size or regulatory landscape – POPI is complex and requires time to implement.
Unlike most pieces of legislation, POPI touches on almost every aspect of your business and do not think for one second that by having great IT security you are covered.
Countless organisations will let you believe that their IT department has got POPI covered. This, if left to be true, is the worst approach to POPI any organisation can follow. It is fundamental to understand that you cannot have privacy without security, but, you can most definitely have security without privacy. And this is true in most instances where IT is allowed to run the show – no complete privacy.
Remember, when embarking on a POPI project, it is imperative to realise that it should be done by business in conjunction with IT and not the other way round. To give the reader an idea of some the complexities faced by organisations when dealing with POPI, I listed only some of the key challenges during remediation:
1. Training and awareness;
2. Information and/or data classification;
3. Records and/or document management;
4. Information governance;
5. Legal and compliance;
6. Third parties;
8. Human resources (HR);
9. Regulator interaction;
10. Data subject requests etc.
The above and shortened list clearly demonstrates aspects beyond IT and IT security. IT should therefore merely be seen as an implementer and facilitator of certain POPI deliverables, rather than the decision maker when seeking compliance.
The same can be said of the trusted compliance department. Do not believe that POPI can be successfully implemented by merely applying your legal savvy; an holistic approach should be followed by carefully crafting a project team that have a myriad of experience across a wide range of fields.
So what now?
Get expert advice and start by conducting a Privacy Gap Analysis to establish the scope of the affected area within your organisation.
It might still be a while before POPI’s Information Regulator becomes fully functional, thereafter one will still have a year before complying, but as with POPI’s drafting and implementation, POPI remediation can and usually does, take a very long time.
Francis Cronjé is an information governance specialist with a strong legal background having completed his LLM at the University of Oslo in Norway on ICT Law and Data Protection. He completed his BLC and LLB degrees at the University of Pretoria and obtained CIPP/US and CIPP/IT certification from the International Association of Privacy Professionals. He is the co-editor and co-author of Cyberlaw@SA and is heading up the consultancy firm, Φ franciscronje.com
For more information contact Francis Cronjé, firstname.lastname@example.org, www.franciscronje.com
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