The impact of South Africa's new data protection regulations

By Ginen Moodley

In a world where data is one of the most valuable assets a business can possess, protecting personal information has become a fundamental legal obligation. In South Africa, the Protection of Personal Information Act (POPIA) sets the standard for data protection. However, recent amendments and a strict regulatory approach by the Information Regulator have introduced new challenges and compliance measures for businesses. This article explores these regulatory updates and offers practical advice for businesses to remain compliant in 2024.

Understanding POPIA's new amendments and regulatory context

POPIA was enacted to uphold the constitutional right to privacy by regulating how personal data is processed and safeguarded. Since its initial rollout in 2021, amendments and intensified enforcement have shifted the compliance landscape, placing increased scrutiny on data breaches, consent protocols, and mandatory reporting obligations.

Key changes introduced:

1. Increased accountability for data breaches: The recent amendments emphasise corporate accountability for data breaches. Businesses must secure personal information and, crucially, report breaches within a specified timeframe to both the Information Regulator and affected individuals. Notably, this includes breaches stemming from lapses in routine data protection measures, such as antivirus software renewals, as seen in the Department of Justice and Constitutional Development's recent case
2. Stricter consent requirements: Companies are required to obtain explicit and informed consent before processing personal data. The amendments specify that consent must be "specific, freely given, and easy to withdraw." This differs from previous standards by enforcing a higher threshold for what qualifies as informed consent, providing individuals with greater control over their data
3. Enhanced enforcement mechanisms: The Information Regulator now has expanded powers, allowing for unannounced compliance checks, the issuance of sanctions, and, in cases of non-compliance, public fines and notices. These measures aim to ensure that organisations prioritise data protection as a central component of their operations

Penalties for non-compliance

With the amendments, POPIA now enforces stiffer penalties for breaches. Businesses found in violation can face fines of up to R10-million, and responsible individuals could face up to 10 years of imprisonment, depending on the severity of the breach. For example, the Department of Justice case underscores that breaches, even through indirect actions like failing to update protective software, can result in substantial financial penalties and public reprimands. This shift indicates the regulator’s zero-tolerance stance on inadequate data protection practices.

Furthermore, the regulator has initiated investigations against several large firms currently under scrutiny for possible non-compliance. These developments send a clear message: robust data protection is no longer a voluntary business choice but a mandatory and critical component of operational integrity​.