Imagine a world where your business, located thousands of miles from South Africa, suddenly faces regulatory requirements because your product ends up on South African shores. You might think, “we’re not here physically, so how does South African law apply?”. But this is exactly the kind of scenario addressed by South Africa’s Protection of Personal Information Act (POPIA).
As a foreign company placing products in the South African market via local importers, you’re unlikely to consider South African privacy laws at first glance. But if you’re using South African resources—servers, cloud storage, or local agents—to process personal information, POPIA’s reach might just extend to you. Let’s unpack why this happens, what you need to know, and how ITLawCo can guide you through this information governance maze.
Why POPIA might apply to you
Under POPIA, a responsible party—that’s the entity accountable for the processing of personal information—doesn’t have to be domiciled in South Africa to fall under the Act’s jurisdiction.
If you’re using “means” within South Africa (such as servers, networks, or local partners) to process the data of South African individuals, POPIA considers you within its regulatory domain. This might seem odd if you’re used to thinking that laws apply only within physical borders, but South Africa’s POPIA, much like the GDPR, extends its influence where South African citizens’ data is involved.
In short, placing products on South African shelves may not be enough to bind you to POPIA—but using South African means to process personal data almost certainly is.
What triggers prior authorisation?
Once it’s established that POPIA applies, there are specific scenarios where prior authorisation becomes mandatory. This is more than a tick-box exercise; it’s about ensuring that your data processing respects the security, rights, and expectations of South African citizens.
Here are the high-stakes activities that require you to seek prior authorisation from the Information Regulator:
Unique identifiers beyond their intended use
Suppose your system captures unique identifiers—account numbers, ID numbers, or reference numbers—and links them with data processed by other entities. POPIA sees this as high-risk and necessitates prior authorisation to ensure such linkage doesn’t infringe upon individuals’ privacy.
Processing sensitive information for third parties
Any data processing around criminal behaviour or “objectionable conduct” on behalf of third parties falls into a sensitive category. This applies to companies conducting criminal checks or analysing past disciplinary actions.
Credit reporting activities
If you’re handling information about an individual’s credit history, that processing directly connects with creditworthiness and must be disclosed and authorised.
Transferring special personal information abroad
South African law applies rigorous scrutiny to the export of data about individuals’ religion, health, race, or political views. If you’re sending such data overseas, particularly to countries with weaker data protection laws, you must obtain permission.
Failing to comply isn’t merely a slap on the wrist. Penalties for neglecting prior authorisation can reach up to R10 million (about $700,000) or even imprisonment. And if the Regulator finds your processing unlawful, they could issue an enforcement notice, essentially bringing your operations to a halt.
The path to compliance
To gain prior authorisation, your company must submit a detailed application to the Information Regulator. This application covers:
- Nature and purpose of data processing: be transparent about why you need the data and how you’ll use it.
- Categories of data subjects: outline whether you’re handling employee data, customer data, or information about children.
- Security measures: describe how you’ll protect the confidentiality, integrity, and availability of personal information.
The Information Regulator reviews applications within 13 weeks, after which it may approve, reject, or investigate further.
How ITLawCo can help
At ITLawCo, we understand the complexities foreign companies face in navigating POPIA’s requirements. Our expertise in data protection, technology law, and compliance uniquely positions us to help you stay ahead of regulatory challenges. From assessing if POPIA applies to guiding you through the application for prior authorisation, we offer end-to-end support tailored to your operational needs. We bridge the regulatory gap so that you can operate confidently in South Africa, backed by thorough legal insight and practical advice.
So, if you’re ready to make data protection a seamless part of your business strategy in South Africa, ITLawCo is here to help you unlock compliance and innovation. Contact us today.
