Abstract
Why POPIA does not apply to DNA
Highlights
One man’s trash is another man’s treasure
POPIA’s application provision, section 3, provides that POPIA applies to the processing of personal information that is entered in a record by or for a responsible party
The reason is as follows: Section 3(1)(b) provides that POPIA applies if the responsible party – i.e. the principal investigator – is domiciled in South Africa or makes use of means in South Africa. (There is an exception, namely where those means are used only to forward information through South Africa; this exception clearly does not apply in the present case.) even if the responsible party is not domiciled in South Africa, and the genetic information is saved on the cloud rather than on any device in South Africa, as long as the DNA sequencer – the means – is in South Africa, POPIA will apply
Summary
One man’s trash is another man’s treasure. This is especially true with human biological material. Geneticists may view the biopsy sample as a ‘container’ of genetic information. This gives rise to the question: How does our privacy law perceive human biological material? Thaldar and Townsend[1] analysed this question and answer it in the negative: POPIA does not apply to human biological material. Adams et al.[2] answer the question in the negative, but express their uncertainty about ‘the exact point at which biological samples become personal information’. Where does this leave DNA? In this Commentary, I analyse an important question for genetics researchers, namely whether POPIA applies to DNA
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