The relationship between competition and data protection regulation in South Africa: options for implementation
Modiga, Koketso Annah
The desire to impose increased restrictions on data collection, usage and sharing to safeguard consumer’s privacy is manifested in the increasing adoption of data privacy regulation across the globe. However, the increased international regulatory oversight is not limited to changing privacy law, as some have advocated using competition law to impose new controls and obligations on entities that collect and make use of personal information to attain more market power. This paper examines the extent to which South Africa should implement data localization laws to protect data privacy rights, as well as the ways in which South Africa should employ both competition and data privacy regulation to regulate the trans-border flow and usage of personal information. This paper also assesses the way in which a nuanced regulatory approach is required to safeguard both data privacy rights, as well as the legitimate interests of corporate entities who seek to process personal information across multiple jurisdictions. The present-day data protection and competition regulations of South Africa was compared to the European Union; with the objective of presenting the gaps within South Africa’s current data protection regulations and the ways in which consumer welfare aspirations in both the regulation of competition and data privacy could potentially play a part in closing those gaps. Lastly, a broad approach to data protection and competition law principles was used to support legal questions raised on how to effectively regulate the flow and usage of personal information, without stifling the growth and use of technology in South Africa.
A research report submitted in partial fulfilment of the requirements for the Degree of Master of Law by Coursework to the Faculty of Commerce, Law and Management at the University of the Witwatersrand, Johannesburg, 2022