The Private Security Industry, like all other citizens, is subject to the provisions of the Protection of Personal Information Act, which form an important part of the compliance framework of the Sector.
We have previously dealt with the challenges occasioned by POPIA.
It became common practice for security service providers in South Africa to install close circuit televisions systems (CCTV), sound recording devices, or even arm their officers with bodycams. We are not aware of any prosecutions at this juncture in respect thereof.
At the time hereof, no matter serving before court has been reported, neither has the Information Regulator issued any directives in this regard and the issue remains, to a larger extent, somewhat clear but yet important.
CCTV, sound, and bodycam recordings trigger two legislative frameworks: the Protection of Personal Information Act (POPIA) and the Regulation of Interception of Communications and Provision of Communication-related Information Act (RICA).
About Sound Recordings
The Regulation of Interception of Communications and Provision of Communication-related Information Act 70 Of 2002 provides as follows: –
“4. Interception of communication by party to communication
(1) Any person, other than a law enforcement officer, may intercept any communication if he or she is a party to the communication, unless such communication is intercepted by such person for purposes of committing an offence.
5. Interception of communication with consent of party to communication
(1) Any person, other than a law enforcement officer, may intercept any communication if one of the parties to the communication has given prior consent in writing to such interception, unless such communication is intercepted by such person for purposes of committing an offence.”
The term “Party to the communication” is defined to mean the following in the context of Section 4:
“(a) section 4, means, in the case of—
(i) a direct communication, any person—
(aa) participating in such direct communication or to whom such direct communication is directed; or
(bb) in whose immediate presence such direct communication occurs and is audible to the person concerned, regardless of whether or not the direct communication is specifically directed to him or her; or”
What this means in practice for Private Security Companies
Bodycam footage: Lawful, but…
The wearer of a bodycam may subsequently consent to the interception of a communication where he is a party to the communication or where the communication takes place within proverbial hearing distance of such person.
It would appear at first glance that once a security service provider obtained the written consent of a wearer of a bodycam, sound recording by such bodycam would be lawful under the provisions of Sections 4 and 5 of RICA.
CCTV footage: Unlawful, but…
After careful consideration of these factors, sound recordings by means of CCTV equipment are classified as third-party interception and would appear to be unlawful, unless the parties have consented thereto in writing as per the provisions of Section 5. It should be noted that indirect communication of employees is covered by another exclusion, which will not be dealt with here today.
Information exchanged may also include personal information as defined in the Protection of Personal Information Act. Facial features and physical likeness are considered to be personal information and therefor the use of CCTV, sound recording, and bodycam systems be subject to the limitations as contained in the Protection of Personal Information Act.
About Protection of Personal Information
The provisions of Section 11 of POPIA grant an outcome to security service providers, which is quoted below
“ 11. Consent, justification and objection
(1) Personal information may only be processed if—
(f) processing is necessary for pursuing the legitimate interests of the responsible party or of a third party to whom the information is supplied.”
The right to safety and property is a constitutionally enshrined right and will undoubtedly comply with this requirement.
The Security Service provider will, however, still be subject to the provisions of Section 18 of POPIA, which provides as follows –
“(1) If personal information is collected, the responsible party must take reasonably practicable steps to ensure that the data subject is aware of—
(a) the information being collected”
In short, the data-subject should take reasonable and practical steps to inform the data-subject of the collection of personal information and, in genera,l provide him/her with a privacy statement in respect of the information collected.
How to deal with this matter in practice
We have already developed a system to accommodate for CCTV coverage, and the collection of Bodycam footage (and sound) is no different. If you require assistance to ascertain your lawful compliant operations in the Security Sector, reach out to our office for specialist Security Sector legal solutions.
