COVID-19 and location surveillance

Given the rapid spread of COVID-19 infections around the world and in our country, the South African government has had to act quickly to pass regulations under the Disaster Management Act, to regulate aspects of our lives as we fight the pandemic.

One of the more interesting of the regulations now passed deals with “track and tracing”, which is essentially the ability of the government to compel the mobile phone operators to share location data of those who have COVID-19 so that their contacts can be traced and tested.

Of course any form of surveillance of our personal data should raise constitutional eyebrows, and location information is no different. But given the importance of contact tracing to arrest the spread of the disease, and thus ultimately save lives, is this kind of law permissible during the pandemic? More specifically, what safeguards are necessary for such a law to pass constitutional muster?

Lavanya Pillay, an associate who works with me, and I grappled with this issue in a recent article in Daily Maverick – here.

I reproduce the article below: we ultimately conclude that the regulations are in may respects a fairly good attempt to balance privacy and the compelling government objective involved – they contain 9 essential safeguards to minimise the privacy invasion, including post-surveillance notification (which amaBhungane argued so vociferously for in the recent RICA constitutional challenge: read more about that in my blog on the Pretoria High Court’s decision here. The Constitutional Court’s decision is eagerly awaited). And Justice Kate O’Regan – retired Constitutional Court judge and one of our constitutional rock stars – has been appointed as the “designated COVID-19 judge” to oversee the implementation of the regulations in so far as the right to privacy is concerned – a bold and important appointment.

The article follows below:

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Snowden, Sam Sole, Sutherland and Surveillance

This week, the Pretoria High Court handed down a momentous decision on South Africa’s surveillance laws that made international headlines. You can read the judgment here: http://www.saflii.org/za/cases/ZAGPPHC/2019/384.html

Indeed, in response to a tweet by Privacy International about the judgment, the best known modern whistleblower in the world, Edward Snowden, tweeted, ‘Wow’.

The decision has – at least for now – outlawed bulk surveillance in South Africa, and also declared a number of provisions in South Africa’s legislation permitting surveillance – known as RICA – unconstitutional. Next step is the Constitutional Court.

I was lead attorney in the case for the applicants, the investigative journalists at amaBhungane, and Sam Sole, its co-managing director, who was placed under surveillance in 2008 simply for doing his job. Sam’s take on the case, an excellent read, is available here: https://www.dailymaverick.co.za/article/2019-09-18-analysis-inside-amabhunganes-landmark-ruling-on-surveillance/

Here’s my summary of the case below, which was published in Business Day this week here: https://www.businesslive.co.za/bd/opinion/2019-09-17-landmark-rica-ruling-impresses-even-ultimate-whistle-blower-edward-snowden/

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Identifying suspects: Cliff Richard v the BBC, and SA law

Molebogeng Kekana and I recently wrote a piece for Daily Maverick on the famous UK privacy case where Cliff Richard successfully sued the BBC for privacy. You can read the case (if you have lots of time on your hands) here.

In our article, we also address the position in South African law – and in particular that it is in general a myth to say that the media cannot identify a suspect before he or she appears in court. By and large, this only applies to cases involving (i) children accused, and (ii) other accused where the crimes of extortion or sexual offences are concerned. In the former case, there is a general rule that the child cannot be named without the court’s permission. In the latter scenario, the identity of the accused can be revealed only when he or she has pleaded to the charge (though I maintain that this is probably unconstitutional).

We also mention the fact that the publishers of the book The Lost Boys of Bird Island decided not to the name the third National Party official implicated in the allegations in the book.

Read our article here.