PROTECTION OF PERSONAL INFORMATION ACT

09/27/2022
  • The Protection of Personal Information Act (4 of 2013), otherwise known as POPIA, promotes the protection of personal information by public and private bodies.
  • The Information Regulator (IR) and its members have been appointed. It is responsible for education, monitoring, enforcement and compliance, as well as the handling of complaints, performing research and facilitating cross-border co-operation. The Act commenced on 1 July 2020. All organisations were required to have been fully compliant with POPIA by the 30 June 2021.
  • Estate agents, intermediaries, property companies and other institutions conducting business in the property sector, are required to comply with the Act and its Regulations, which includes obtaining consent from client before any of their private information is used, and collecting and storing client information in such a way that only individuals with the necessary authorisation are able to access it. Neither estate agents nor conveyancers may share a client’s information or pass it on to another organisation or body without the data subject’s written consent, and have suitable systems and rules in place so as to properly safeguard the client’s personal information. Estate agents will also not be allowed to hand over the information of tenants and interested purchasers to landlords and sellers without the necessary policies having been set up and permissions obtained. A breach may expose the holder of the information to a damages claim, and/or prosecution for a criminal offence – attracting a possible fine or a period of imprisonment, or both.
  • The Act sets out 8 conditions which are required to be met for the lawful processing of personal information of data subjects, as follows: Accountability, Processing Limitation, Purpose Specification, Further Processing Limitation, Information Quality, Openess, Security Safeguards and Data Subject Participation. Codes of Conduct may be developed in order to clarify how the 8 conditions are to be applied within a  particular Sector or Profession. The Sector within which Property Practitioners operate may therefore develop their own Codes of Conduct, service level agreements, as well as amended employment contracts, so as to ensure compliance with POPIA.
  • Estate agents will need to be cognisant of the strict limits imposed by POPIA relating to direct marketing. They will need to obtain the necessary permissions in order to continue communications to clients such as sending newsletters and campaigns, online marketing, bulk emailing, special offers and latest listings.