Information protection authorities from across the globe are now pursuing investigative bodies for non-compliance with legislation aimed at Protecting Personal Information. An Investigative firm was recently fined more than €150,000 for illegally obtaining private bank records of an individual whom they were investigating.
Private Investigations have historically played a significant role in the investigation and prosecution of both economic and other crimes in South Africa, but investigators may now be taken to task for not complying with the conditions for lawful processing of personal information as required by the Protection of Personal Information Act.
The Private Security Industry Regulation Act defines a private investigator as “a person who, in a private capacity and for the benefit of another person, investigates the identity, actions, character, background or property of another person, without the consent of such a person” This definition also accurately describes the nature of investigations sometimes conducted by auditors, attorneys and forensic investigators.
The very nature of private investigations paints a perilous picture for investigators in the POPIA landscape where a data subject’s consent is key to the lawful processing of personal information.
To make matters worse, the Protection of Personal Information Act defines a responsible party to mean “…… private body or any other person which, alone or in conjunction with others, determines the purpose of and means for processing personal information”. Both the investigator and principal may subsequently be held liable in terms of the Protection of Personal Information Act.
Private Investigators, attorneys auditors and forensic investigators will subsequently have to equip themselves with the necessary skills and knowledge to navigate the POPIA landscape, not only to protect themselves but also their clients. Clients, in turn, will have to carefully select investigators to ensure that they are not unwillingly and unknowingly exposed to legal risks.
