The regulatory dilemma on mass communications surveillance and the digital right to privacy in Africa : the case of South Africa

Abstract

Behind the cloak of maintaining national security and public order, African governments and the private sector constantly encroach upon the data privacy rights of individuals. The right to privacy is not only protected by various international human rights instruments that African states have voluntarily ratified but has been enshrined in several constitutions. Yet, without proper safeguards, the same states continue to stifle the right through intrusive surveillance methods. They indiscriminately acquire, intercept, transmit, analyse and retain an individual’s data, able to be amassed to generate intimate and detailed profiles of individuals.

While the right to privacy is not absolute, international human rights law requires that its limitations be legal, justifiable and reasonable. Hence the purpose of this article is to determine the extent to which the South African communications surveillance law conformed to the foregoing. The article finds that the silence of the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA) on mass surveillance, its weak and ineffective data privacy safeguards, insufficient oversight provisions and law enforcement officials’ impunity render the law invalid for a democratic society. Further, the new personal data law131 has exempted national security operations from its regulation. As a result, RICA needs to be reformed, as affirmed by the recent verdict of AmaBhunghane Centre for Investigative Journalism NPC v. Minister of Justice and Correctional Services & Others.