Asymmetry in South Africa’s Regulation of Customer Data Protection: Unequal Treatment between Mobile Network Operators (MNOs) and Over-the-Top (OTT) Service Providers
Date
2019-06-28
Authors
Shanapinda, Stanley
Journal Title
Journal ISSN
Volume Title
Publisher
LINK Centre, University of the Witwatersrand (Wits), Johannesburg
Abstract
This article examines the asymmetry that currently exists in South Africa in the
regulatory treatment of customer data usage by mobile network operators (MNOs)
and over-the-top (OTT) service providers. MNOs and OTTs must receive customer
“consent”, in terms of the Protection of Personal Information Act (POPI Act) and
its Regulations, before sharing the customer’s “personal information” with a third
party. But MNOs have an additional requirement to meet, in terms of the Regulation
of Interception of Communications and Provision of Communication-Related
Information Act (RICA), which is not applicable to OTTs: a requirement whereby
a customer must provide “written authorisation” to an MNO before the MNO can
share “communication-related information which relates to the customer concerned”
with a third party. In this article, I examine and analyse provisions of the POPI Act,
POPI Act Regulations, RICA, other relevant legislation, court decisions, records of a
Parliamentary hearing, the standard terms and conditions and privacy policies of two
South African MNOs (Vodacom and MTN), and two international OTT service
providers (Google and Facebook). Based on the analysis, I argue that the unequal
regulatory treatment between the MNOs and OTTs, if allowed to persist, threatens
to undermine the growth of key elements of South Africa’s digital economy.
Description
Keywords
data protection, South Africa, regulatory asymmetry, mobile network operators (MNOs), over-the-top (OTT) service providers, Regulation of Interception of Communications and Provision of Communication-Related Information Act (RICA), Protection of Personal Information Act (POPI Act), digital economy, competition, personal information, privacy, consumer protection, compliance, enforcement, regulatory uncertainty
Citation
Shanapinda, S. (2019). Asymmetry in South Africa’s regulation of customer data protection: Unequal treatment between mobile network operators (MNOs) and over-the-top (OTT) service providers. The African Journal of Information and Communication (AJIC), 23, 1–20. https://doi.org/10.23962/10539/27536