Western privacy and/or Ubuntu? Some critical comments on the influences in the forthcoming data privacy bill in South Africa

Abstract

There is a worldwide concern growing regarding the increasing potential threats to the personal privacy of individuals caused by technologies and governments. The international response of governments has been to draught comprehensive privacy legislation in order to protect their citizen's personal information and to enable their citizens to have control over their personal information. In South Africa, the right to privacy is protected by both Section 14 of the Constitution and the provisions of the Common Law, but at this stage no formal privacy legislation is in place to enforce fair data protection principles. A new Data Privacy Bill is in the process of being draughted by the South African Law Commission and it is taking into account South Africa's unique political and social context as well as international demands made by the global economy. The prime influences acting upon the new Data Privacy Bill are the mandate in the Constitution, the EU Data Protection Directive and the Ubuntu worldview. Ubuntu can be described as a community-based mindset in which the welfare of the group is greater than the welfare of a single individual in the group. In this article, we argue that the EU Data Protection Directive is one of the best articulated privacy laws in existence today and the Ubuntu philosophy has been pressed into service very successfully in diverse arenas in South Africa. This paper argues that both influences will be seen in the future Data Privacy Act, but that the EU Data Protection Directive's influence will be pre-eminent.