South Africa introduced judicial oversight on the collection of personal health
data under the COVID-19 application. The designated judge was supposed to
receive weekly updates on the collection and usage of personal data and make
directives for protection of privacy.46 In addition, the Disaster Management
regulations that established a national COVID-19 Tracing Database containing
the identification and contact information for all persons tested for COVID-19,
and the details of known or suspected contacts of any person who tested
positive for COVID-19, was supposed to destroyed within six weeks of the end
of the State of Disaster. Furthermore, the database information must be
anonymized, if to be retained for research purposes.
Despite the above clear framework, the IR as the data protection authority was
unable to compel the National Department of Health (NDoH) to confirm that the
information collected during the pandemic had been destroyed or archived with
sufficient security measures confirmed by an expert third party information
security firm. The NDOH was supposed to obtain a report from an information
security firm confirming the measures undertaken, and this was also on
recommendation of the designate judge. The NDOH defied a directive from the
IR, compelling the escalation of the matter to the IR's Enforcement Committee
issuing an enforcement notice equivalent to a court order.
4.3 Automated data processing
Through analysing personal data information technology has eased human
roles in decision making accentuating risks of discrimination, bias and unfair
decisions making to data subjects. The making of decisions that have an impact
of significant nature or substantial effect from automated processes is not
allowed in most DP laws, unless if there are exceptions, of a data subject
allowing that, or appropriate measures are in place to protect data subject
personal interests. The Zambian47 and Mauritian 48 data protection laws,
specifically define profiling as defined in the GDPR recital 71. The laws only
differ on the use of personal aspects relating to a natural person (Zambia) and
relating to an individual (Mauritius). The GDPR recital 71 define profiling
means.
Section
of the Disaster Management Act No. of
Regulations.
ZDPA section , profiling means any form of automated processing of personal data consisting of the use of personal data to evaluate certain
personal aspects relating to a natural person, including analysis or prediction of the data subject s aspects concerning that natural person s
performance at work, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements.
Mauritian DPA section means any form of automated processing of personal data consisting of the use of personal data to evaluate certain
personal aspects relating to an individual, in particular to analyse or predict aspects concerning that individual s performance at work, economic
situation, health, personal preferences, interests, reliability, behaviour, location or movements.
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