NAVIGATING POPIA AND THE INFORMATION OFFICER

Article by: Cape Town Attorney: Nicolene Schoeman-Louw

Essential guide for Founders and Managing Directors: Navigating POPIA - The Role and Responsibility of the Information Officer

In today’s data-driven world, compliance with the Protection of Personal Information Act 4 of 2013 (“POPIA”) is not only a legal requirement but also a critical business function. Every business that processes personal information must appoint an Information Officer (“IO”) to ensure compliance with various sections of POPIA, including section 55.

An IO is essential for protecting personal information and facilitating access to information. It is important to note that the IO is not the Chief Information Officer (“CIO”); they have very different roles.

By default, every organization has an Information Officer, and the law outlines specific responsibilities for them. The Promotion of Access to Information Act 2 of 2000 (“PAIA”) automatically designates the default IO for each organization. Every organization has a default Information Officer: this includes all public bodies, such as national departments, provincial administrations, and municipalities, as well as all private bodies, including companies, close corporations (CCs), partnerships, and trusts. Even if responsibilities related to data protection under both POPIA and PAIA are delegated to someone else, the organization ultimately remains accountable for compliance.

The IO must be registered with the South African Information Regulator and can designate a Deputy Information Officer, who must also be registered.

Key Functions:

Establishing a Compliance Framework, Ensuring Awareness and Conducting Training

The IO is responsible for developing, implementing, monitoring, and maintaining a compliance framework under POPIA. This entails the following key responsibilities:

• Conducting an impact assessment to ensure that all data processing activities comply with lawful processing principles.
• Developing internal procedures and systems to handle requests for information access and processing efficiently.
• Conducting regular assessments of the organization's data processing activities.
• Creating, monitoring, and maintaining a manual for PAIA to address third-party information requests in accordance with the manual.
• Regularly reviewing and updating the organization's approach to data protection.
• Conducting regular training sessions and fostering a culture of compliance, ensuring that all employees understand and adhere to lawful data processing conditions.

The Supply Chain - Third Parties

Many businesses outsource their data processing activities or utilize tools that involve sharing personal information. To ensure proper handling of this information, the IO must:

• Ensure that third-party operators managing personal information have written contracts in place that establish adequate security measures.
• Regularly assess the compliance of third-party processors to reduce liability and risk.

Security Safeguards and Breach Management

Data breaches pose significant risks to personal information. It is essential to identify and assess both internal and external risks. To mitigate these identified risks, appropriate safeguards should be established and maintained.

Regular verification of the effectiveness of these safeguards is necessary, along with updates in response to evolving risks and vulnerabilities.

A security breach can lead to serious legal and reputational consequences. In the event of a data security compromise, the responsible organization must:

• Notify the Information Regulator and affected data subjects in the prescribed manner.
• Implement measures to contain, investigate, and mitigate the impact of the breaches.

Regulator Cooperation

The IO acts as the primary point of contact for the Information Regulator. This involves:

• Cooperating with the Regulator in investigations relating to the organization's data processing activities.
• Providing necessary documentation and reports as required by the Regulator.

Conclusion

Non-compliance can lead to both civil and criminal liability. Adhering to POPIA is not only a legal requirement but also a critical business necessity that safeguards both consumers and the organization. Business owners must take proactive measures to appoint a competent Information Officer (IO), establish effective compliance frameworks, and cultivate a culture of data protection within their businesses. By doing so, they can minimize legal risks, build customer trust, and ensure the sustainable growth of their businesses.

In conclusion, here are some practical considerations for IOs:

• Confirm that the appropriate person has been designated as the Information Officer.
• Understand your legal obligations as the Information Officer.
• Assess the impact of data protection and access to information on your organization by reviewing potential risks.
• Ensure your compliance program is on track by consulting someone independent and staying informed about industry trends.
• Identify the necessary steps by obtaining a list of agreed actions for implementation.
• Know what information the designated Information Officer should provide when you request a report.

For more information, please visit our website schoemanlaw.co.za or give us a call on 021 425 5604