Drafting a Code of Conduct for Research under the Protection of Personal Information Act No. 4 of 2013 (with corrigendum)

Abstract

A one-year grace period was provided to give organisations time to comply with the provisions of the Act. It will therefore be mandatory as of 1 July 2021, for all sectors in South Africa to comply with POPIA.POPIA gives effect to the constitutional right to privacy. In so doing, it balances the right to privacy with other rights and interests, including the free flow of information within South Africa and across its borders. POPIA adopts a principle-based approach to the processing of personal information. It sets out eight conditions for the lawful processing of personal information: accountability, processing limitation, purpose specification, further processing limitation, information quality, openness, security safeguards, and data subject participation. These principles apply equally to all sectors that process personal information.

The Impact of Covid-19 on the Future of Law

“…In this regard, one may take note of a particular phrase in the Basel Resolution-article 9(2) requires a close link between the contract and the overriding mandatory rules in dispute and also that "they further such aims as are generally accepted by the international community". 113 As will be discussed in paragraph 6, the proper law of the contract (English or Ethiopian law) will probably determine what the role of the Mauritian COVID regulation is in the determination of the Mauritian company's liability for not making payment (unless the contractual consequences are spelled out in the regulation).…”

“…All instruments, in as far as they make provision for the application of the law of the country of performance and/or the law of another country, are clear that the (additional) application of the overriding mandatory rules of these systems is discretionary. 116 In this regard, the court must take into account the nature and scope of the overriding mandatory rule and the consequences of its application or non-application. 117 While a court should always have the option to apply or not to apply the overriding mandatory rules of the potentially applicable legal systems referred to (that is, with the exception of the lex fori), it is incumbent that such discretion exists in the event of cumulation, which may entail a true conflict of overriding mandatory rules (the one relevant system may outlaw the importation of all alcoholic beverages while the other one makes an exception for wine).…”

“…115 In opt-in settings, the data subject is typically required to consciously exercise control and decide whether to consent. 116 Practically, the design of the consent procedure is of significant relevance, as consumers tend to choose the option that has been marked as a default, leading to a higher likelihood for consent in an opt-out default setting. 117 During the pandemic, people became more aware of the legal implications of consent.…”

“…The first, which relates broadly to academic activities, is that USAf has adopted, in 2020, a code to guide institutions of higher education on how to process personal information (USAf's Code). 112 It appears that the intention for USAf's Code to be registered with the Information Regulator, 113 however, at the time of writing this paper, USAf's Code has not yet been adopted by the Information Regulator. The second, which is specific to academic research, is the Academy of Science of South Africa (ASSAf), acting as a representative for academia in general, took on the mantel to spearhead the development of a code of conduct for academic research in South Africa (Code of Conduct).…”

Research and the meaning of ‘public interest’ in POPIA

“…Furthermore, it would assist the research community if the basic formulation could be expanded by the Code of Conduct for Research (the Code) that the Academy of Science of South Africa (ASSAf) is currently developing. 2 To inform ASSAf’s Code development process, this article provides a concise analysis of the principles concerning public interest that have crystallised in our law.…”