any form of automated processing of personal data evaluating the personal aspects
relating to a natural person, in particular to analyse or predict aspects concerning the
data subject s performance at work, economic situation, health, personal preferences
or interests, reliability or behaviour, location or movements.
Section 62(1) of Zambia Data Protection Act and Mauritius Data Protection Act
section 38(1) prohibits automated data processing which includes profiling that
produces legal effects concerning data subject or significantly affects him or
her.
The South African Law Reform Commission in its seminal report on Privacy and
Data Protection described profiling in more helpful terms as where information
which relates to an individual is structured in such a way that it can begin to
answer questions about that person, so as to put his or her private behaviour
under surveillance'. Further, profiling has two process components 1) profile
generation and 2) profile application.49 In most instances, profile generation is
not harmful, as this is the case with most automated data processing systems.
Profile generation becomes harmful when profile applied. Every bank has a
customer profile, as part of Know Your Customer (KYC) based on personal data
collected on a contractual basis for opening of bank accounts; customer banker
relationship, but if the bank then uses that information to determine and decide
the interests rates of a loan or to reject a loan application, this significantly
affects the data subject. The bank must provide an explanation to the data
subject, to remove concerns of bias. If the decision to reject a loan or high
interest is communicated to a customer from an automated call centre, even
with a human agent, this engagement might again be dictated by data produced
assessment limiting the human agent to referencing computer generated
responses. This human involvement is therefore immaterial and insufficient to
provide justification and explanation.
These risks compels data controllers to seek authorisation or inform DPAs on
automated data processing unless if exceptions applies. Under section 20(1) of
Zimbabwe CDPA authorisation is especially required if there is a high risk of
infringement of data subject rights and freedoms. Further, Zimbabwe CDPA
section 23(1) mandates the DPA [Authority] to keep a register of all automatic
processing operations. This register must be available for public inspection.
The responsibility of the data controller in respect of automated data
processing is to ensure that appropriate procedures for the profiling as well
sufficient technical and organisational measures that reduce data
inaccuracies, secure personal data, reduce and prevent, any bias or
discrimination are in place.
South African Law Reform Commission Project

on Privacy and Data Protection

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