e hesitant to grant interdicts against the publication or broadcasting of information relating to pending court proceedings.
The traditional South African common law principles of protecting individual privacy and identity appear to be inadequate in circumstances where a person's personal particulars (data) are being processed (collected, stored, used and communicated) by another person or institution. Such collections take place on a daily basis and are facilitated by advancements in technology. For instance, companies often maintain detailed databases of their employees and customers.
In October 2005, The South African Law Reform Commission (SALRC) published a Discussion Paper with a view to addressing the current legislative dearth in South Africa regarding data protection. The SALRC noted in the Discussion Paper that, despite numerous international developments in regard to the protection of privacy and more specifically data protection, South Africa lacks comprehensive legislation dealing with these issues.
The SALRC's recommendations resulted in the publication of the Protection of Personal Information Bill (the Bill) which has been drafted as a result of the need to keep South Africa in line with international developments and to protect the privacy of South African data subjects.
The Bill aims to give effect to each person's right to privacy by introducing measures to ensure that the personal information of an individual is safeguarded. The Bill regulates the collection, dissemination, use and retention of personal information by responsible parties. The Bill defines a "responsible party" as a public or private body or any other person which determines the method for processing personal information.
The Bill was tabled in Parliament on 25 August 2009, but has not yet been finalised and adopted. Pending promulgation of the Bill, interim data protection provisions are contained in the Information Act (see above) and the Electronic Communications and Transactions Act, No. 25 of 2002 (ECTA) (see below).
Telecommunication and Broadcasting Services in South Africa
Telecommunications and broadcasting services in South Africa are regulated by the Electronic Communications Act, No. 36 of 2005 (ECA).
The ECA came into force on 19 July 2006. It repeals the Telecommunications Act, No. 103 of 1996 (Telecommunications Act) and the Independent Broadcasting Authority Act, No. 153 of 1993 (IBA Act), and amends the Broadcasting Act, No. 4 of 1999 (Broadcasting Act).
Licensing under the ECA
The ECA removes the distinction between the different types of telecommunication services referred to in the Telecommunications Act. In terms of the ECA, all types of telecommunication services fall under the umbrella of electronic communications services.
Accordingly, there is no longer a distinction between services such as public switched telecommunication services, mobile cellular telecommunication services, national long distance telecommunication services or value-added network services. The rationale for eradicating the categories of services is to promote competition in the electronic communications sector.
The ECA makes provision for the licensing of three categories of services:
- electronic communications network services;
- electronic communications services; and
- broadcasting services.
Two types of licences may be issued within these categories of services, namely individual licences and class licences. Electronic communications network services, electronic communications services, and broadcasting services that require individual licences include:
- electronic communications networks of a provincial and national scope and that are operated for commercial purposes;
- electronic communications services consisting of voice telephony that require numbers from the national numbering plan;
- commercial broadcasting and public broadcasting services of national or regional scope; and
- any of the above services where a state entity holds an ownership interest (either directly or indirectly) of more than 25% of the share capital of the per