4.3 Data Protection and Digital Forensics
The POPI Act permits the Regulator to exempt a processing of personal information
from its provisions in the public interest.
109 The Act further specifies that public
interest includes “the prevention, detection and prosecution of offences”
110 There
are instances also in which certain requirement of the Act is relaxed for the purpose
of investigation and detection of crimes. For example, it is among the principles of
data processing that information must only be collected directly from the data
subject.
111 However, there is no need to comply with this principle if it is necessary
for prevention, detection, investigation, prosecution and punishment of offences.
112
4.3.1 Interception of Communication Data: The Permitted Scope
There are a number of laws regarding interception of communication in
South Africa. The primary legislation in this respect is the Regulation of Interception
of Communications and Provision of Communications Related Act (RICA).
113 In as
much as the communication involves personal information however, it is the POPI
Act that will.
Intentional interception of communications is, as a general rule, prohibited under
the RICA.
114 However, the Act provides instances where such interception may be
lawful among which is for the purpose of investigation, detection and prosecution of
crimes. Section 47 of the RICA provides that information regarding the commission
of any criminal offence, obtained by means of any interception, or the provision of
any real-time communication related information, under this Act may be admissible
in evidence in any criminal or civil proceedings as specified under the Act. It does
not appear that the Act restricts the scope of information that can be intercepted in so
far as it is either a direct or indirection communication.
115
The RICA also provides that telecommunication service providers must provide
services which can intercepted.
116
The RICA provides for requirements for interception depending on the context
and the purpose of the interception. For example, it provides that interception may
take place when a person has an interception direction. An interception direction is a
direction authorizing interception based on the provisions of the RICA. The
109 Section 37(1) of the POPI Act.
110 Section 37(2)(b) of the POPI Act.
111 Section 12 of the POPI Act.
112 Section 30(2)(d) of the POPI Act.
113 Act 70 of 2002. Also available at http://www.saflii.org/za/legis/num_act/roiocapocia2002943.
pdf.
114 Section 2 of RICA.
115 Section 1 (2) of RICA.
116 Section 30 (1)(a) of RICA.
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The POPI Act permits the Regulator to exempt a processing of personal information
from its provisions in the public interest.
109 The Act further specifies that public
interest includes “the prevention, detection and prosecution of offences”
110 There
are instances also in which certain requirement of the Act is relaxed for the purpose
of investigation and detection of crimes. For example, it is among the principles of
data processing that information must only be collected directly from the data
subject.
111 However, there is no need to comply with this principle if it is necessary
for prevention, detection, investigation, prosecution and punishment of offences.
112
4.3.1 Interception of Communication Data: The Permitted Scope
There are a number of laws regarding interception of communication in
South Africa. The primary legislation in this respect is the Regulation of Interception
of Communications and Provision of Communications Related Act (RICA).
113 In as
much as the communication involves personal information however, it is the POPI
Act that will.
Intentional interception of communications is, as a general rule, prohibited under
the RICA.
114 However, the Act provides instances where such interception may be
lawful among which is for the purpose of investigation, detection and prosecution of
crimes. Section 47 of the RICA provides that information regarding the commission
of any criminal offence, obtained by means of any interception, or the provision of
any real-time communication related information, under this Act may be admissible
in evidence in any criminal or civil proceedings as specified under the Act. It does
not appear that the Act restricts the scope of information that can be intercepted in so
far as it is either a direct or indirection communication.
115
The RICA also provides that telecommunication service providers must provide
services which can intercepted.
116
The RICA provides for requirements for interception depending on the context
and the purpose of the interception. For example, it provides that interception may
take place when a person has an interception direction. An interception direction is a
direction authorizing interception based on the provisions of the RICA. The
109 Section 37(1) of the POPI Act.
110 Section 37(2)(b) of the POPI Act.
111 Section 12 of the POPI Act.
112 Section 30(2)(d) of the POPI Act.
113 Act 70 of 2002. Also available at http://www.saflii.org/za/legis/num_act/roiocapocia2002943.
pdf.
114 Section 2 of RICA.
115 Section 1 (2) of RICA.
116 Section 30 (1)(a) of RICA.
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