Prioritising Command-and-Control Over Collaborative Governance: The Role of the Information Regulator Under the Protection of Personal Information Act

Abstract

Although the Protection of Personal Information Act 4 of 2013 (POPIA) wholeheartedly adopts the command-and-control features of the EU General Data Protection Regulation (GDPR), POPIA does not include many of the collaborative governance mechanisms in the GDPR. POPIA dilutes the accountability requirements in the GDPR. It rarely requires responsible parties to generate or keep documentation and there is no equivalent of European Data Protection Impact Assessments in the South African Act. This affects the regulation of automated processing that involves profiling. The European system of certifications is also not included in POPIA. POPIA includes a system of codes of conduct but even they have a more peremptory nature. The absence of collaborative governance mechanisms in POPIA constitutes a missed opportunity to build a culture of enhanced data protection in South Africa. The Information Regulator has the task of giving many exemptions and prior-approvals under the Act. The newly constituted Information Regulator will find itself exposed as it faces a particularly difficult mandate.