Data protection D-day is here – SA companies take heed

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gdrpGDPR is here, and for organisations that deal with any personal information relating to EU member states, non-compliance will be ruinous.

The countdown has ended. D-day for enforcement of the European Union’s (EU) General Data Protection Regulation (GDPR) is here.

As of today, 25 May 2018, penalties will begin rolling in for organisations that have not yet taken the necessary steps to ensure they are compliant with this restructured – and considerably more stringent – set of data protection regulations.

The GDPR is a regulation borne out of the European Parliament, Council of the European Union and European Commission’s joint intent to strengthen and unify data protection for EU citizens.

But just because the GDPR is an EU regulation, South African organisations are by no means off the hook. On the contrary, experts warn, local companies need to take the GDPR – positioned as one of the most significant changes in data privacy regulation in 20 years – very seriously.

The inescapable fact is, any South African company that handles personal data connected to the EU has to comply with the GDPR, and failure to do so will be met with the same major consequences EU organisations face for non-compliance.

Far-reaching forces

Over recent decades, not only has personal data has become an increasingly important corporate asset that needs to be handled with extreme care, it has also become geographically agnostic. This means that, today more than ever, with the exponential growth of data propagated across borders, organisations globally need to take a staunch and unified approach to guarding it.

South African organisations, big or small, are no different – and the GDPR is not the only government-led product of this hugely digital age, nor will it be the last, it is merely the latest one to be enforced.

Leilani Smit, compliance professional at Smit Compliance (Pty) Ltd, notes that the GDPR applies to any local organisation that holds or processes data on EU citizens, regardless of the location of its head office. “This includes companies that have employees in the EU, sell or market products or services in the EU, or partner with EU organisations.”

Leon van der Merwe, head of digital at customer communication firm PBSA and director of local digital signature and workflow solution SignFlow, adds that any South African entity controlling or processing data relating to EU citizens is affected by the GDPR. “Controlling refers to any organisation that states why and how data is processed, while a processor is any party doing the actual processing of the data, whether based in the EU, or not.”

World Wide Worx MD, Arthur Goldstuck, says the effects of the GDPR will be far-reaching due to the fact that the EU is SA’s biggest trade partner. “[On top of this], any company that does business with a company that has to comply with GDPR, will also have to comply, to ensure the client is in compliance.”

GDPR vs POPI

Fortunately for SA, details around the country’s own local version of data protection policy – the Protection of Personal Information (POPI) Act – have been highly publicised since 2013, and many companies will already be familiar – some even largely compliant – with what is expected of them in terms of data protection.

Summing up SA’s POPI Act, Michalson’s says: “Essentially, the purpose of [POPI] is to protect people from harm by protecting their personal information. To stop their money being stolen, to stop their identity being stolen, and generally to protect their privacy, which is a fundamental human right.”

Although – unlike the GDPR – it is still not known when POPI will come into effect, what is known is that companies will have a one-year transitional phase in which to comply once POPI’s implementation date is made public.

Smit says, should a local company already be compliant with international legislation such as GDPR, the implementation of policies to comply with POPI “should be a breeze and not require anything other than normal company practices and procedures”.

Van der Merwe says POPI and GDPR are similar in that both are intended to strengthen the protection of individuals’ personal information and privacy, and it is precisely this element – intention – that is key here, says Goldstuck.

The high price of non-compliance

Another area in which both sets of rules are similar, is in the hefty fines that come with non-compliance.

In a nutshell: breach rules laid out in the POPI Act, and face a R10 million fine and/or a jail sentence; fail to comply with the GDPR’s regulations, and be prepared to be slapped with a fine of up to €20 million (about R290 million) – or 4% of annual sales (whichever is greater).

Smit comments: “In South African terms, POPI already poses strict penalties for non-compliance, however as far as our Rand stretches, the GDPR’s penalties will definitely cause sleepless nights.”

Although possibly the biggest concern for companies, Smit notes that financial implications are not the only implications they should be worried about. “Not only can non-compliance result in fines and penalties set by the legislation itself, but [the] reputational damage of not processing information correctly, can often be more damaging that the initial penalty itself.”

It is this high price of non-compliance IT and legal experts hope will drive South African companies to do the right thing – not only for themselves, but ultimately for their customers – and fervently strive to meet GDPR compliance criteria.

Consumer-centric control

Van der Merwe says it is all about the consumer. “Both GDPR and POPI were ultimately created to protect the consumer’s privacy. We are all someone’s consumer, and even small businesses owners need to think carefully and logically about areas in their business where personal information is processed or stored, and what vulnerabilities may exist in their processes.

“For instance, we all receive CVs that contain heaps of personal and even sensitive information. Often, after a host of interviews, only the person’s CV that is employed, is securely transferred to a digital or physical vault in HR. What happens to the rest of the CVs that did not make it? It is the responsibility of any business to have policies and procedures to timeously and responsibly destroy such information. Simply identifying these vulnerabilities and implementing logical measures to manage them, is a good start for any size business.

“GDPR is a good thing that could be very bad news for companies, if they fail to provide evidentiary and auditable processes and adequate IT security to protect personal data.”

Goldstuck adds that it is not only important, but essential, that South African companies have a global view on data protection. “Something as simple as having a website hosted on an international platform can make a company liable to sanction under GDPR.”

Teaming up with tech

When it comes to local companies complying with the seemingly daunting and complicated GDPR in a relatively pain-free way, experts agree technology will be key. Software systems that offer automation, content management, enterprise resource planning and accounting, among others, will become a lifeline for many companies in their quest to comply.

Van der Merwe says existing paper-based processes and antiquated electronic systems that were created prior to factors such as the GDPR and POPI, pose major risks of contravening their laws and directives. “It is all about how businesses – and governments themselves – are going to align their physical and data processing practices with the new requirements and legislation. New regulations that enforce concepts such as the right to be forgotten pose major challenges if not considered in the process from the outset.”

Goldstuck says, while the data protection laws necessitate considerable changes in the ways businesses operate and interact with customers, good compliance systems will provide most of the safeguards they need.

“Businesses will have to get permission for almost every interaction with customers, they will have to become more discerning in what information they require from customers, and they will have to institute strict compliance systems to ensure they do not fall foul of these laws. As a result, compliance officers, CIOs and CTOs will have more direct roles to play in customer strategy.”

Don’t delay

Although not yet enforceable, the commencement date for POPI has been looming large on the horizon for some time now, with many expecting it by the end of 2018.

Despite this, say experts, many organisations are far from being ready. Goldstuck says: “Most large businesses have geared themselves up to comply with POPI, although many have not put this gearing up into effect. However, there is also an impression that many companies are simply not bothering until they are forced.”

Forrester’s 2018 predictions indicate that a whopping 80% of firms will not comply with GDPR regulations by May this year.

This has to change – and fast – says Smit. “Businesses can no longer just take a backseat and hope this will pass by or fly over.  Active steps will have to be taken in an organisation, for instance staff training, risk assessments and creating an ethical culture within an organisation, specifically with regards to processing personal information.”

 

 

[REFERENCES]

  1. EUR-Lex – Access to European Law
  2. org – Web learning resources for the EU General Data Protection Regulation
  3. Government Gazette (justice.gov.za) – Act No. 4 of 2013: Protection of Personal Information Act, 2013
  4. Michalson’s – POPI Act Summary in Plain Language
  5. Forrester – Predictions 2018: A Year of Reckoning

Credit providers to proceed with caution

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man-and-women-window-shipping-at-mallCredit-granting companies are urged to continue to carry out stringent checks on prospective lenders, following a recent ruling that relaxes affordability assessment requirements.

While many local retailers have lauded a recent High Court ruling that binned a legal clause requiring lenders to demand payslips and financial statements from credit applicants, the move has been met with raised eyebrows from SA’s credit regulator – which is concerned it may lead to reckless lending.

Indeed now more than ever, in light of the historic ruling, it is worth reiterating how vital it is for credit lending – in whatever form – to be approached with caution. If you are a business owner that deals with individuals or other businesses, the importance of carrying out thorough checks when assessing customers’ credit status cannot be stressed enough.

While it is unquestionably important for businesses to have customers, financially vulnerable customers only spell trouble – both for your company’s bottom line and the customer, who you as a business should be protecting.

Court ruling

On March 16 this year, the Western Cape High Court made a ruling that binned the clause of the National Credit Regulations that, since 2015, had made it compulsory for credit lenders to acquire payslips and financial statements from prospective borrowers before granting credit.

The judgment applies to all forms of credit lending, from store credit to microloans.

Prior to the recent ruling, subsection 23 A(4) of the National Credit Regulations required credit providers to obtain three recent payslips or bank statements as proof of income from applicants who were permanently employed – and three recent documented proofs of income or bank statements from those who did not receive a salary. If the applicant could not provide proof of income, credit providers had to then get three recent bank or financial statements from them (see page 18 of the Government Gazette, 13 March 2015).

While affordability assessments have always been a requirement of the National Credit Act (NCA), prior to the more stringent requirements put in place in 2015, credit providers were allowed to decide on their own means of carrying these out.

This year’s Western Cape High Court ruling – spurred on by applications by Truworths, the Foschini Group and the Mr Price Group – essentially returns the affordability assessment subsection of the NCA back to its former, more moderate, self.

The three retailers brought the case against the Department of Trade and Industry and the National Credit Regulator (NCR) because they claimed the said affordability assessment regulation adversely affected their businesses.

Continue with caution

However, the NCR, which believes an important tool in the fight against reckless lending and borrowing has been removed, is not happy with the ruling, to the extent it is considering an appeal.

The Credit Ombud, meanwhile, has also reportedly greeted the ruling with caution.

News site iol cites NCR company secretary, Lesiba Mashapa, urging credit providers to continue to carry out thorough credit checks despite the ruling: “We appeal to credit providers to continue to apply the income verification standards set by the regulations to protect themselves and consumers from reckless lending and borrowing.”

While the credit regulations in terms of affordability assessments have been significantly relaxed, Section 81 of the NCA, which requires credit providers to take “reasonable steps” to assess consumers’ financial stability before granting credit, remains in force.

Mashapa has urged credit providers to proceed with caution, and continue to carry out stringent credit checks on prospective customers. “[Credit providers] should request consumers to produce proof of income.”

pbVerify offers a range of B2B and B2C Credit Risk Management tools for any size business in South Africa that grants credit. For more information visit our products page HERE

 

[REFERENCES]

  1. Credit Ombud – National Credit Regulations including affordability (Chapter 3: Page 17)
  2. The Department of Justice & Constitutional Development – National Credit Act (Page 114)
  3. Southern African Legal Information Institute – Truworths Limited and Others v Minister of Trade and Industry and Others (4375/2016) [2018] ZAWCHC 41
  4. iol – High Court ruling removes barriers to credit
  5. Business Day – Court ruling leaves credit providers in catch-22 situation