Data pro­tec­tion law poised to come into force

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - Pa­trick Bracher

THE gov­ern­ment has pub­lished a short­list of can­di­dates for the in­for­ma­tion reg­u­la­tor to be es­tab­lished in terms of the Pro­tec­tion of Per­sonal In­for­ma­tion Act. It looks like the data pro­tec­tion law will fi­nally come into force af­ter sit­ting on the shelf for three years wait­ing for reg­u­la­tions and a reg­u­la­tor.

This was, you may re­mem­ber, the law we promised to in­tro­duce be­fore the 2010 Soccer World Cup.

I can’t help won­der­ing (like the clients of a now well-known Pana­ma­nian law firm) how much help the law is go­ing to be. In 1671 Sir Matthew Hale, the Lord Chief Jus­tice of Eng­land, de­cried the print­ing press as “the rolling of a snow­ball”. What would he have said about the in­ter­net? Google the word “in­ter­net” and you will get nearly 4bil­lion re­sults in 0.43 sec­onds. It is a snow­ball that never melts.

Our new data pro­tec­tion law will be use­ful to those who hate be­ing spammed and will give re­course to peo­ple whose pri­vate in­for­ma­tion is re­vealed. But most of us are pow­er­less in the sights of even the av­er­age hacker.

If peo­ple can hack into the FBI and into the most se­cret ac­counts of the rich and fa­mous, how do you and I pro­tect our stored data?

If you are a per­son re­spon­si­ble for pro­cess­ing the per­sonal in­for­ma­tion of oth­ers (if you have an in­ter­ac­tive busi­ness web­site or use the e-mail sys­tem in the course of your busi­ness you prob­a­bly are), you have to se­cure the in­tegrity and con­fi­den­tial­ity of the in­for­ma­tion in your pos­ses­sion by tak­ing ap­pro­pri­ate, rea­son­able, tech­ni­cal and or­gan­i­sa­tional mea­sures to pro­tect un­law­ful ac­cess to the in­for­ma­tion.

What is ap­pro­pri­ate and rea­son­able? No amount of money spent on com­puter sys­tems could have fire­walled the Pana­ma­nian lawyers’ client in­for­ma­tion against the at­ten­tions of the In­ter­na­tional Con­sor­tium of In­ves­tiga­tive Jour­nal­ists. We have to do our best with avail­able re­sources.

An in­creas­ing num­ber of peo­ple are do­ing their shop­ping on­line. An on­line fash­ion re­tailer in Ger­many was re­cently fined for al­low­ing the un­law­ful pro­cess­ing of cus­tomers’ per­sonal in­for­ma­tion. They put a “Like” but­ton on their web­site, prob­a­bly not ap­pre­ci­at­ing that whether cus­tomers click on the but­ton or not their per­sonal in­for­ma­tion is given to the so­cial net­work provider.

The Pro­tec­tion of Per­sonal In­for­ma­tion Act pro­vides spe­cial pro­tec­tion for in­for­ma­tion that is sent to a for­eign coun­try. But if you are stor­ing things in the cloud you prob­a­bly have no idea where the in­for­ma­tion is go­ing or how it is be­ing pro­tected. And, for in­stance, if you type the names on the short­list for em­ploy­ment at the in­for­ma­tion reg­u­la­tor into an in­ter­net search it will instantly re­veal some in­ter­est­ing per­sonal in­for­ma­tion about them.

Type in your own name and you might find out some sur­pris­ing things about your­self.

Let’s hope the reg­u­la­tor can con­cen­trate on pos­i­tive things. We don’t need more heavy-handed reg­u­la­tion. The suc­cess of the law de­pends on it be­ing ad­min­is­tered in a way that recog­nises its lim­i­ta­tions and the lim­i­ta­tions of all of us in the face of tech­nol­ogy that moves as fast as the speed of light.

Can­di­dates short­list brings long-de­layed in­for­ma­tion reg­u­la­tor a step closer

Pa­trick Bracher (@PBracher1) is a di­rec­tor at Nor­ton Rose Ful­bright.

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