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... 105 Roos, a leading scholar on privacy in Africa, disagrees however, stating that this is 'confusion'. 'If it is kept in mind that privacy as a personality interest is only infringed when someone learns of true private facts about a person against the person's will', states Roos, 'the difference between privacy and other personality objects [like dignity] becomes clear.' 106 Nonetheless, without necessarily waging into this debate, there are reports of the use of surveillance to aid the violation of dignity of persons in Cameroon, Kenya, Mozambique, Nigeria, Tanzania and Uganda after violating their privacy. 107 The UN Special Rapporteur observed that 'there are credible indications to suggest that digital technologies have been used to gather information that has then led to torture and other ill-treatment.' 108 Some accounts go thus: ...
All the main international human rights instruments, except the African Charter on Human and Peoples’ Rights (the “African Charter”), contain the right to respect for private life, the home and correspondence. This right protects unlawful and unnecessary surveillance. Different theories have been propounded by scholars about the absence of this right in the African Charter. The most prominent and acceptable theory is that the African Charter mirrors African Traditional Values and that under the African system of communalism, privacy is somewhat respected, in contrast with the wide privacy notion under Western liberalism. However, in the era of surveillance technologies where States are able to use these technologies to violate privacy, there is a question about the sustainability of the notion of the “somewhat respect for privacy” in the African human right system. This paper answers this question, and in addition, answers the following: (i) to what extent can and should digital surveillance be permitted under the African human rights system? and (ii) is there any provision in the African Charter that can protect Africans from unnecessary digital surveillance by African States? The paper finds that African States use surveillance technologies for illegitimate purposes, despite the fact that Africa is technologically behind. Therefore, it argues for the formulation of a binding instrument on privacy; a framework for the use of technology in Africa; and the enactment of surveillance laws which are necessary, legitimate, effective and proportional
... According to Roos, the information gathered may be incomplete, inadequate, accessed without authorisation or even destroyed. 70 Making a decision or forming an opinion based on such erroneous details may lead to discrimination against an individual. Similarly, electronic surveillance facilitates profiling (like terrorism profiling) and dealing with an individual based on such a profile, with the high possibility of errors. ...
This article analyses the tension between the rule of law and the increasing use of electronic surveillance in sub-Saharan Africa. Indeed, in the sub-Saharan region today, the rule of law is severely under threat. These threats include bad governance, corruption and a poor human rights track record. Respect for human rights particularly is one of the key indices of the presence of a strong rule of law. However, sub-Saharan African states seriously lag behind in this respect. While so much has been said of the violations of other human rights, not much is said of the right to privacy. Hence, the rule of law being a fundamental component of human rights, the right to privacy faces emerging threats from practices aided by the gradual advances in technology, such as electronic surveillance. Electronic surveillance, with its capacity to effortlessly undermine human rights, is now commonplace in countries in the sub-Saharan region. This becomes more complicated with the frequently-made claim that such surveillance is 'lawful' or 'reasonable' for law enforcement or national security. What amounts to 'lawful' or 'reasonable' intrusions are not only nebulous, but also largely unquestionable. Interestingly, this is not the only difficulty concerning the practice of electronic surveillance. There seems to be a general misconception that electronic surveillance only constitutes a challenge to the right to privacy when it actually affects some other important values. In view of this, the article examines the ways in which the increasing use of electronic surveillance undermines the rule of law in sub-Saharan Africa.
... The collection of information on individuals can be traced from as early as 1086 when William I of England (also known as William the Conqueror) collected variety of information and recorded it in Domesday Book. 42 In the early 1970s, the concept of personal data protection began in Europe 43 and the data protection legislation has now been adopted in many countries. 44 With the effort taken to protect the personal data, Professor Basie von Solms still notices that "[a]lthough in theory, security measures are in place in government and private institutions, in practice, some of the SA's most critical data could be open to compromise." 45 He further adds that he does not know of any database that was declared a critical database. ...
This paper highlights the danger which the online casino gambling players are likely to face in view of the nature of activity itself and the use of internet. The paper focuses on the foreseeable risk of online behavioural advertising (OBA) by way of cookies which is likely to infringe the online casino gambling players' online right to privacy. The author argues that online casino gambling players are consumers whose rights to privacy must be protected by the Constitution of the Republic of South Africa Act 108 of 1996, the Electronic Communications and Transactions Act 25 of 2002, the Consumer Protection Act 68 of 2008 and the Protection of Personal Information Bill 9 of 2009 (the 'PPI'). The paper further gives the latest development of OBA in Europe. Acknowledging the PPI as a welcome piece of a bill, the paper finally brings the regulatory consideration of OBA by way of cookies.
It is a common understanding that insurers should be able to differentiate for risk selection. The risk of adverse selection is generally accepted in society, yet problematic underwriting is usually about differentiation that could, in certain circumstances, exceed the limits of what is acceptable and in such circumstances be classified as unfair discrimination. As insurance is voluntary, the parties are free to agree on the type of cover to be provided. With the assistance of big data and advanced technologies, such as genetic, locational and activity-based information, insurers have ever-increasing access to unique personal information and an increase in the accuracy of their risk modelling. There has been a recent increase in the popularity of novel parametric insurance products. Parametric insurance aims to categorise, classify or group persons according to standard parameters and to provide for fixed amounts to be payable upon a risk event. Some insureds placed in a specific group do not necessarily share the average characteristics of that group. Information regarding the individual’s personal circumstances and unique characteristics that may affect the real risk is often ignored. Such a general grouping that results in a different premium or extent of coverage for the average risk posed by members of the group could be seen as discriminatory.
There has not been extensive discussion in the broader South African legal literature on the import and effect that disruptive technologies have had on existing regulatory frameworks, in South Africa.
This chapter maps data privacy systems in Africa by providing insights into the nature of privacy concept in the African society generally, law reforms in the continent and enforcement. The chapter is organised in six sections. The first section provides an overview of the development of data privacy regulation as a result of the rise of new technologies. The second provides the context of the African society-its political history and culture. This section lays down foundation for Sect. 1.3 which deals with the notion of privacy in an African cultural context. Section 1.4 gives an overview of the international data privacy policies and their influence in the development of privacy policies in Africa. The general state of national privacy laws is presented in Sect. 1.5. Section 1.6 concludes the chapter.
Four decades have passed since the discourse on privacy had emerged. Nonetheless it has been claimed that Africans do not value privacy. Commentators in the field of data privacy argue that Africans live in collectivist culture. The latter denies an individual a private sphere for exercising the right to privacy. Despite the over dominance of this scholarship, there remains a dissatisfying lack of comprehensive explanation for the concept and value of privacy in Africa. Partly this is due to a fallacy that Africa is a static and unchanging society. Also part of this assumption though intertwined in the first set is the over dominance of the claim that individualism as such is a pre-condition for privacy to take shape and develop. In this article I refute these generalised claims and argue that privacy is an evolving concept in Africa. Although at the moment concerns for privacy are generally relatively low compared to the Western individualist culture, such concerns are emerging and privacy regulation is developing as a response.
This chapter provides the background needed for the exploration of the emergence of the right to the protection of personal data as a fundamental right in European Union (EU) law by focusing on the notion of privacy. First, it offers an overview of divergent approaches to this multifaceted notion, noting inter alia how concurring views can be classified depending on whether they rely or not on the public/private distinction. Second, it introduces a detailed historical account of how the word ‘privacy’ was re-defined at the end of the 1960s in the United States (US) with the specific meaning of control upon personal information, and how this approach was developed and inscribed in US law as concerned with the doctrine of ‘fair information principles’. Third, the chapter examines developments taking place at the same time in Europe, where in some countries the word ‘privacy’ was soon adopted, but where other countries were instead busy analysing through other legal lenses the possible threats linked to increasing computerisation.
This is an absolute right (Chalton et al Encyclopedia of data protection par
Jan 1998
DP Act of 1998 s 11(1). This is an absolute right (Chalton et al Encyclopedia of data protection par
Hamilton Data protection 322–323; Bainbridge Data protection law
152-153
Jay See
See also Jay & Hamilton Data protection 322–323; Bainbridge Data protection law 152–153.