The protection of personal information act: a critique through the lens of libertarian legal theory
| dc.article.end-page | 39 | |
| dc.article.start-page | 1 | |
| dc.contributor.author | Meyer, Jonathan Alan | |
| dc.contributor.supervisor | Zitzke, Emile | |
| dc.date.accessioned | 2024-06-10T08:56:31Z | |
| dc.date.available | 2024-06-10T08:56:31Z | |
| dc.date.issued | 2022-10-31 | |
| dc.description | Research report submitted in partial fulfilment of the requirements for the degree of Master of Laws by Coursework and Research Report at the University of the Witwatersrand, Johannesburg, 2022 | |
| dc.description.abstract | This paper offers a critical analysis of the Protection of Personal Information Act 4 of 2013 (POPIA) and its impact on freedom of trade, occupation and profession (freedom of trade) as found under s 22 of the Bill of Rights in the Constitution of the Republic of South Africa, 1996 (the Constitution) from a libertarian legal theory perspective. Owing to a lacuna in South African law, the provisions of POPIA that seem to impede free trade will probably not result in an unconstitutional infringementof the section 22 right. Those provisions in POPIA that restrict free trade may nevertheless be critiqued from the perspective of libertarian legal theory. More specifically, libertarian legal theory’s rejection of over-regulation. In this research report, the ultimate finding is that the cardinal issue with POPIA is that, paradoxically, and despite POPIA’s proclamation to promote a free-flow of information in balancing such purpose with the Constitutional right to privacy found under s 14 of the Constitution, POPIA serves to limit, over- restrictively, the free flow of information between businesses and business, and businesses and natural persons. The research report conducts a cursory analysis of the right of freedom of trade and investigates certain important provisions of POPIA through a libertarian-legal lens. There are three weaknesses in POPIA that are identified in this research report. Firstly, POPIA has a negative impact on trade because both natural and juristic persons receive data protection in terms of th e Act, whereas in jurisdictions where the GDPR operates, only natural persons receive such protection. It will be shown how this aspect of POPIA is potentially overly onerous on businesses. Secondly, the security requirements under POPIA are not only unreasonably onerous on, and expensive for, companies, to implement, but they are cumbersome, contradictory and vague. It will be shown how this could negatively affect free trade. Thirdly, POPIA’s sections dealing with civil liability are too far- reaching in their consequences of business, while also providing for defences to responsible parties which are prejudicial to data subjects. This amounts to an over- regulation, which is antithetical to libertarian legal theory | |
| dc.description.submitter | MM2024 | |
| dc.faculty | Faculty of Commerce, Law and Management | |
| dc.identifier.citation | Meyer, Jonathan Alan. (2022). The protection of personal information act: a critique through the lens of libertarian legal theory [Master’s dissertation, University of the Witwatersrand, Johannesburg]. WireDSpace. https://hdl.handle.net/10539/38617 | |
| dc.identifier.uri | https://hdl.handle.net/10539/38617 | |
| dc.language.iso | en | |
| dc.publisher | University of the Witwatersrand, Johannesburg | |
| dc.rights | © 2022 University of the Witwatersrand, Johannesburg. All rights reserved. The copyright in this work vests in the University of the Witwatersrand, Johannesburg. No part of this work may be reproduced or transmitted in any form or by any means, without the prior written permission of University of the Witwatersrand, Johannesburg. | |
| dc.rights.holder | University of the Witwatersrand, Johannesburg | |
| dc.school | School of Law | |
| dc.subject | UCTD | |
| dc.subject | Personal information Act | |
| dc.subject | POPIA | |
| dc.subject | Protection of Personal Information Act 4 | |
| dc.subject.other | SDG-17: Partnerships for the goals | |
| dc.title | The protection of personal information act: a critique through the lens of libertarian legal theory | |
| dc.type | Dissertation |