Data protection and borderless borders: the effect of the namibian data protection bill on transborder data flows
Date
2022
Authors
Journal Title
Journal ISSN
Volume Title
Publisher
University of the Witwatersrand, Johannesburg
Abstract
Data is the sine qua non of the modern economy. The proliferation of digital industries has led to concerns about the misuse of personal data. The resultant risks have sparked ethical and legal concerns across the globe, prompting the adoption of data protection laws. The Namibian constitution guarantees the right to privacy in Article 13, but the country lacks a comprehensive data protection legal framework. The Namibian government issued a Data Protection Bill in 2013.This dissertation critically analyses sections 2 and 48 of the Data Protection Bill dealing with transborder data flows, by employing a two-part theme. In the first instance, the dissertation advocates for a holistic approach that strikes a balance between the individual’s right to privacy and the economic imperatives of transborder data flow. In the second instance, the dissertation investigates how to effectively govern transborder data flow with the continuous blurring of lines between physical and virtual worlds, where data transcends territorial borders with a simple click. The mainstream argument for regulating
transborder data flow is that if there are no restrictions on the transfer of data to third-party countries, personal data may end up in jurisdictions with the laxest, or more likely, no data protection standards, just as money ends up in tax havens. To put the oft-quoted tax analogy into context, there may be nothing preventing international data processors from circumventing domestic data protection requirements by gravitating personal data to data havens. Through an elaborate comparative analysis, primarily referencing three instruments: the oecd Guidelines, the GDPR, and the POPI Act; the dissertation looked at how these issues are considered and whether the Namibian Data Protection Bill matches up to these standards. The analysed regulatory regimes varied; nonetheless, a corollary was drawn to adopt a broader EU-style territorial scope. This dissertation recommends that section 2 of the Bill should be amended to conform with Article 3(2) of the GDPR (targeting test/market principle). The chosen approach actively embraces the fourth industrial revolution by allowing data protection to ‘travel’ with personal data wherever it goes in a globalised world.
Description
A research report submitted in fulfillment of the requirements for the degree Master of Laws (LLM) in the Faculty of Commerce, Law & Management, University of the Witwatersrand, Johannesburg, 2022
Keywords
Data protection law, Transborder data flow, Data havens, Disruptive technologies, Territorial scope, Borderless borders, Human rights centric, UCTD
Citation
Negonga, Paulina Nangula. (2022). Data protection and borderless borders: the effect of the namibian data protection bill on transborder data flows [Master’s dissertation, University of the Witwatersrand, Johannesburg]. WireDSpace. https://hdl.handle.net/10539/38671