Does your right to privacy and protection of personal information under South African law mean that your previous misdeeds can be forgotten?

right to privacy and protection of personal information

Individuals (referred to under new South African law as ‘data subjects’) can apply for a court order to have personal incriminating information about them removed in the search results pages. 

This comes after a man had a ruling passed by the European Court of Justice to have Google remove links to a news website which referred to his previous bad debts. His previous insolvency issues had been resolved, but his credit history was still coming up in Google’s search results pages when typing his name into the search bar. While the newspaper website could continue to archive the information about the man, Google on the other hand, was ordered to remove reference to the newspaper (or any other links for that matter) from the search engine’s results pages.

Since this recent ruling, Google has been preparing for a flood of requests by individuals requesting outdated, irrelevant or even unflattering information, to be removed from its search results. Requests have already been received from political and public figures, medical professionals as well as persons previously convicted of child abuse, all demanding the right to have their previous misdeeds and transgressions forgotten.

This raises many questions and concerns: Should previous sexual offenders have the right to have their information removed, should politicians running for election be allowed to hide their previous transgressions from the public? Should a doctor who has been found guilty of malpractice not be exposed to protect other patients? The lines become very blurred between what information the public should have access to, and what information should be forgotten.

Is your online reputation protected under South African law?

South African’s are currently protected under the law of defamation, where a negative comment published online – which is damaging to an individual’s reputation – may be considered a violation of the law, unless these comments are factually true. However, this new European ruling has thrown a spanner in the works, by allowing information to be ‘forgotten’ in order to protect the person’s reputation even though this information is factually true.

The recently passed Protection of Personal Information (POPI) Act may very well be the very piece of legislation that South Africans could arm themselves with when lodging an application to have Google remove negative information about them from the search results. POPI suggests that an individual has the right to have any personal data removed or destroyed by companies who collect and process their information.

POPI stipulates that information may only be gathered and collected for specific, fair, lawful and legitimate purposes and only for a period of time. It further states that companies processing this personal information should gather the information directly from its data subjects and not from 3rd parties. By gathering the world’s information, Google processes the information and then displays this information on their search results in response to search queries.

Since the European Court has no jurisdiction in South Africa, it may very well set a precedent for other countries to follow suit. And while the Protection of Personal Information Act (POPI) bears similarities to the European data protection laws, the onus will remain on the individual (data subject) to take the necessary steps to get their information removed from Google’s results.

Are your misdeeds truly forgotten?

This remains to be seen, as previous instances of removal of information from Google’s search results have appeared to contain reference to the fact that the information was removed, by order of the court, from the search results pages.

This almost highlights the fact that certain results were removed, by including a link to the order, where all information pertaining to the order is outlined, thus drawing attention to the issues that should have been deemed forgotten. If this will change, time (and most likely several court orders and applications) will tell.

Can a Brand’s Online Reputation demand protection too?

Thus far, only individual persons have succeeded in claiming the right to be forgotten under European law. In South Africa, POPI refers to data subjects as individual persons and not brands or organisations.

If the information is factually untrue, the brand or company can take legal steps under the law of defamation, following which, it appears the brand or company will still need to take other steps towards being forgotten.

If the source of the information refuses to remove negative content from their website, then your best recourse will be to embark on a positive web PR and customer reviews campaign in order to drown the negativity from the search results as quickly and legitimately as possible.

We will continue to monitor this space as things evolve under this new ruling, with specific eyes on how South Africa will deal with similar applications.

In the meantime, we would love to hear your thoughts on this…