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April 22, 2020

COVID-19: THE RIGHT TO PRIVACY vs THE SAFETY AND HEALTH OF ALL SOUTH AFRICANS

South Africa declared a State of National Disaster in terms of the Disaster Management Act, 2002 and gazetted amended regulations dated 02 April 2020 to curb the spread of the COVID-19 pandemic (the “Amended Regulations”).

The Amended Regulations introduce a cellular network tracing technology to trace possible COVID-19 contacts. This was considered necessary due to the complaint that some people who tested positive for COVID-19 have been difficult to trace because healthcare workers did not properly record their information, or they have disobeyed self-isolation and quarantine regulations. In addition, it will assist with the efficient trace of all individuals who may have come into contact with those who tested positive for COVID-19.

One cannot deny that cellular phones and wireless electronic devices are vital communication tools which have become necessary for full participation in modern life. However, they are also powerful tracking devices that may be used to infringe on individual privacy. In terms of South African Law, the right to privacy is protected in terms of the common law and section 14 of the Constitution of South Africa, 1996 (the “Constitution”).

This decision by Government to use contact tracing has raised a host of concerns from many South Africans regarding the right to privacy. Some consider the envisaged contact tracing as “spying”. Significantly, the Amended Regulations contain measures which are critical to striking a balance between the right to privacy and the health and safety of all individuals in order to limit the number of infections. These include the following: 

  • the amendment will permit the Director-General: Health to instruct electronic communications companies to provide “the location or movements of any person known or reasonably suspected to have contracted Covid-19” and “the location or movements of any person known or reasonably suspected to have come into contact with such person”;
  • the location or movements of persons referred to in the categories above may be obtained during the period commencing 05 March 2020 until the end of the State of Disaster;
  • any information obtained in the categories above may only be retained by the Director-General: Health for a period of six weeks after being obtained and shall thereafter be destroyed;
  • no government official will be permitted to intercept the contents of any electronic communication;
  • the information obtained may only be used by authorised persons for the purpose of combating the spread of COVID-19;
  • no person may disclose any information contained in the COVID-19 database or information obtained through this Regulation, unless authorised to do so and unless it necessary to combat the spread of COVID-19;
  • within 6 weeks after the national disaster has lapsed or terminated the information still contained in the tracing database must be de-identified (meaning someone’s personal identity not revealed) and the de-identified information may be retained and used only for purposes of research, study and teaching. That which has not been de-identified shall be destroyed;
  • the Amended Regulation directs that a COVID-19 Designated Judge be appointed who will be responsible for ensuring that the right to privacy of all citizens is protected. The Designated Judge is required to make recommendations to government on the enforcement of these Amended Regulations in order to protect the right to privacy without hampering the ability of the Department of Health to combat the spread of COVID-19;
  • for the sake of transparency, accountability and safeguarding the right to privacy the Director-General: Health must file a weekly report with the COVID-19 Designated Judge setting out the names and details of all persons whose location or movements were obtained in terms of the Amended Regulation.

All rights conferred by the Constitution may be limited, and this is not the same as derogation from rights. Limitations on rights are restrictions which are necessary to balance competing or conflicting rights, or to harmonise rights with other public objectives. Like any other rights in the Bill of Rights the right to privacy is not absolute and may be limited by application of section 36 of the Constitution. The right to privacy is an individual right which when weighed against the country’s right to safety and health, does not supersede the country’s rights. As a country the most critical and important right that we are all working towards is ensuring safety and health of all South Africans to curb the spread of COVID-19.

As with all other restrictions to individual rights (i.e. right to freedom of movement) that have been imposed through Amended Regulations, this is also an extraordinary measure necessary to combat the spread of COVID-19.