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No, proposed amendments to National Health Act won’t violate South Africans’ right to privacy

Proposed new regulations to control current and future pandemics are set to replace the Covid-19 state of disaster’s emergency measures. But will they trump the right to privacy, as claimed on social media?

This article is more than 1 year old

In early April 2022, the South African government lifted the state of disaster to control the Covid-19 outbreak, declared two years before.

Measures to manage the current pandemic, and any future ones, are now set out in proposed amendments to 2017 regulations added to the National Health Act of 2003. President Cyril Ramaphosa announced the new regulations in late March and called for public comment until mid-April.

The amendments would permanently apply to Covid-19. They also list 50 or so other “notifiable medical conditions”.

But they’ve caused much debate. Politicians, as well as health and legal experts, have expressed concern (for instance, here and here). The debate has also taken to social media.

A graphic circulating on Twitter and Facebook makes three claims about the powers the amendments would give the government.

They are:

  • The Amendment grants government the legal authority to enforce any medication it deems necessary – which you cannot refuse. No one is held liable for possible side-effects.
  • The Amendment grants government legal authority to conduct daily surveillance and monitoring of private citizens including accessing private information through overriding privacy laws.
  • The Amendment grants government legal authority to enforce mandatory vaccinations.

The first and third claims will be discussed in a longer Africa Check report, to be published in early May. 

Here, we look at the second.

Privacy is a right in South Africa, as set out in the constitution’s Bill of Rights. Legislation to safeguard this right includes the Protection of Personal Information Act, known as Popia.

But if the amendments were passed, would they let the government monitor and surveil South Africans every day? Would they override privacy laws to allow access to private information? We looked into it.

Amendments don’t override privacy laws – legal experts

During the Covid-19 state of disaster, the government used several methods to collect data for contact tracing.

Under the new regulations, a contact tracing database listing “notifiable medical conditions” would be created.

This means that should a person be diagnosed with (or tested for) one of the conditions, some personal information would be collected – from them and from other people they might have exposed to infection. This information would generally include names, addresses, identity numbers and contact info. 

Africa Check asked the law firm Werksmans Attorneys about the privacy claim. They said nothing in the proposed amendments would give the government the power to override privacy laws.

Karl Blom, an associate at Webber Wentzel and a data protection and privacy law expert, confirmed this. The regulations have an impact on privacy, he said, but “do not ‘override’ the privacy laws of South Africa”. 

Blom said anything that infringed on the constitution and privacy laws such as Popia would have to be tested in court. The government would in any event have to act in accordance with Popia, he added. 

And the regulations require that all contact tracing information remain confidential. They also limit how the information may be disclosed. 

But what about digital privacy? The amendments say: “Nothing in this regulation entitles the Director-General: Health or any other person to intercept the contents of any electronic communication.”

‘Almost absent-minded’

It’s clear that the amendments wouldn’t trump privacy laws. But there are other concerns. 

Murray Hunter, a senior associate at public interest research and advisory firm ALT Advisory, outlined his issues with the proposals in a recent column on the News24 website. Africa Check asked him about them. 

Hunter said it was recognised that some personal information would be needed for contact tracing and other interventions during a pandemic. But those drafting the regulations “haven’t thought very carefully about when it's absolutely necessary to collect patient information, and how to ensure protection of personal information when you do”.

But in his column, Hunter says there’s “nothing to suggest that this is malicious”.

“Rather, it appears almost absent-minded. For example, some of the diseases for which this data collection would now apply can’t even be passed from one person to another. (What’s the point of doing contact tracing for malaria?)”

Malaria is transmitted by mosquitoes.

The proposed amendments to the National Health Act may have their flaws, but if passed they wouldn’t override the constitution and other privacy laws. And they wouldn’t allow the government to monitor and “conduct daily surveillance” on South African citizens.

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