The Data Protection Bill [ DPB] seeks to consolidate provisions found in several Acts of Parliament for the protection and security of personal data in Malawi. At the outset, the DPB is indeed comprehensive legislation in so far as data protection is concerned as it incorporates most of the internationally recognised norms and standards on data protection. This notwithstanding, some aspects have been left out or inadequately addressed. This brief commentary highlights the positive and notable aspects of the DPB. In my next article I highlight the weaker aspects of the DPB that may still require attention before the DPB is enacted into law.
DPB-the highlights
As stated, the DPB comprehensively incorporates most of the governing norms on data protection.
Comprehensive Incorporation of Core Principles on Data Protection
There are several internationally recognised core norms for data protection. These include Fair and lawful processing of personal information, Purpose specification, Minimality, quality, Openness and transparency, Data subject participation, Sensitivity, Security and confidentiality and Accountability.[1]
The DPB mandates data controllers to process information fairly, in a transparent manner and subject to the data subject giving consent.[2] This suffices as lawful processing of personal data under the DPB. Section 19 of the DPB also requires specific treatment for sensitive personal data. The DPB requires purpose specification for the processing of personal data, minimality, quality.[3] Data subject participation is guaranteed under part IV of the DPB which outlines the rights of a data subject. Data security is comprehensively regulated under Part V of the DPB. In all this, it is easy to appreciate how comprehensive the DPB is in embracing the international norms and standard on data protection.
Cross-Border Transfers of Personal Data
The DPB adopts a comprehensive framework for cross-border transfer of personal data.[4] This is a great step towards ensuring data protection in cross-border online transactions. This is because the DPB effectively provides a platform against which cross-border flows of personal data can be regulated. This can be sharply contrasted from the old Electronic Transactions and Cyber Security Act, which did not contain any provisions regulating cross-border flows of personal data in electronic transactions.
The DPB can be commended on many fronts including the condition of making data flows primarily subject to a decision on the adequacy of data protection in the foreign country to which the data will be transferred. [5] The DPB is progressive in that data transfers can be authorised where the foreign country has a law, binding corporate rules, contractual clauses, code of conduct, or certification mechanism that afford an adequate level of protection.[6] This list is exhaustive enough to ensure sufficient facilitation of cross-border flows. In the absence of an adequate level of protection of any of the foregoing, a data transfer can be authorised under these conditions: if the data subject gives consent; if the processing is necessary for performance or conclusion of contract involving the data subject; and where consent cannot be practicably given, the transfer is nevertheless in the best interest of the data subject and the data subject would not have objected to it had he been asked.[7] These exceptions are broad enough to ensure the pace of international transactions is not unnecessarily hindered.
Data Protection by Design and Default
The DPB is also very progressive in that it accords the Authority with the power to publish directions on good practices and codes of conduct in data protection including the application of data protection principles by design and default in the processing of personal data.[8] Data protection by design is a concept that dictates that in light of progressive data protection regimes, companies must ensure that in their activities they incorporate data protection. Essentially since the companies must comply with data protection they must not wait for breaches before they address data protection but rather from the commencement of any action or process data protection must be incorporate and addressed.
On the other hand, data protection by default entails that for those computer products already released, there must be adherence to the highest standard of privacy to ensure data is kept safe and secure. Further, any data necessary for the operation of the product should only be kept for the minimum possible amount of time. The incorporation of these concepts in the DPB is a remarkable step in ensuring that privacy will be respected as technology gets more sophisticated.
The DPB clearly updates the data protection landscape in Malawi to comparable international standards. This is indeed a shift in the right direction and will ensure that Malawi takes part in the information age. In my next article I shall explore some of the weaknesses in the DPB that may yet be improved to ensure comprehensive legislation is enacted.
Author: Gonjetso Dikiya LLB(Hons) University of Malawi; LLM candidate in Information and Communications Law, University of the Witwatersrand.
Head of Legal Services- Dispute Settlement Services
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[1] Roos Anneliese ‘Core Principles of Data Protection’ 2006 CILSA 102-130.
[2] S. 18 of the DPB
[3] S. 23 of the DPB.
[4] Part VI of the DPB.
[5] S. 34(1)(a) of the DPB.
[6] S. 34(1)(a) of the DPB.
[7] S 36 of the DPB.
[8] S. 13 of the DPB
