Addressing The Gaps In The Data Protection, Privacy And Surveillance Legislation

5.1.7. Imposition of additional obligations on data controllers
The Cyber and Data Protection Act should impose additional duties on data controllers and processors about
conducting risk assessments where fundamental rights and freedoms are at stake, preparing standard and
adequate privacy policies, and conducting data protection by design and by default.

5.1.8. Tightening of the obligations of data controllers and adoption of international cooperation
mechanisms with regards to cross-border transfer
The scope of considerations that a data controller must consider in assessing the adequacy of the level of
protection afforded by a third party for purposes of cross-border data transfer in the Cyber and Data Protection
Act should be broadened to expressly include the rule of law, respect for human rights and fundamental
freedoms, and case law, among other factors. Further, the Act should provide for mutual legal assistance and
multilateral and bilateral treaties as a mechanism of international cooperation in enforcing data subject rights
in relation to cross-border data transfers.

5.1.9. Provision of civil remedies in favour of data subjects
The Cyber and Data Protection Act should expressly recognise and codify civil remedies that entitle data
subjects to receive compensation from a data controller or processor for financial or emotional damage
suffered because of infringement of the Act.

5.2. Surveillance Legislation
5.2.1. Definition of key terms
The Interception of Communications Act should include a definition of the term monitoring to guard against
abuse of surveillance powers by delineating what the authorities should and should not do while monitoring
communications.

5.2.2. Adoption of judicial oversight
The Interception of Communications Act and the Postal and Telecommunications Act should require that
decisions related to authorising the interception of communications be made by a competent, impartial, and
independent judicial authority.

5.2.3. Adoption of safeguards in respect of the handling of intercepted communications
The Interception of Communications Act and the Postal and Telecommunications Act should stipulate the
proper procedure to be adopted when authorities are examining, copying, sharing, sorting through, using,
destroying and/or storing intercepted communication.

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