LCR4805 PORTFOLIO MEMO - SEMESTER 2 - 2022 - UNISA

QUESTION 1 The following questions are based on the accented Protection of Personal Information Act 4 of 2013 with full compliance since June 2021. Thapelo Lesedi owns a dog parlour, named “Pampered Pooches”. In order to advertise his business and to keep in touch with clients, he created a Facebook page for his business. On the Facebook page, he posts information about his services as well as news items about the dogs and their owners who make use of his services. For example, he posted a picture of a dog being bathed whilst his owner is looking on. He commented on it: “Peter of Pampered Pooches is giving Lucky his monthly wash and trim while Lucky’s owner Lemogang Legoba is looking on”. (a) Is posting a picture of someone on a Facebook page as described above considered to be “processing of personal information” in terms of the Protection of Personal Information Act? Discuss by referring to the Act’s definitions of “processing” and “personal information”. (5) (b) Is Thapelo Lesedi a “responsible party” as defined by the Protection of Personal Information Act? Discuss by referring to the definition of “responsible party” in the Act. (4) (c) Will the Protection of Personal Information Act be applicable in this set of circumstances? Substantiate your answer by referring to the application provisions of the Act. (3) (d) Assuming (for purposes of this question) that the Protection of Personal Information Act 4 of 2013 is applicable to the set of facts above, are there any grounds on which Thapelo Lesedi can rely to continue his activities on the Facebook page? Discuss by referring to all the possible grounds for processing personal information listed in section 11 of the Act. Explain which ground will be the most applicable. (5) (e) What are the rights of Thapelo’s clients and employees (the data subjects) in terms of the Act if Kabelo continues to process their personal information? Discuss in detail. (13) [30] QUESTION 2 Mr Motloung is in the process of upgrading and improving his restaurant in Qwaqwa. He opens a spam email which seems to advertise the latest style and technology in kitchen equipment available for the first time in South Africa. Mr Motloung clicks on the attachment to the email in order to see the pricelist. With the opening of the attachment, the following message appears on the screen: WARNING! We have encrypted your files with Crypt0l0cker virus 372. Your personal documents and files on this computer, which includes your photos, videos, and any documents on the network or disks, were encrypted with our Crypt0l0cker virus 372. This means your files are of no use unless they get decrypted. The only way to get your files back is to pay us R5000 within the next 15 days. Then you will receive a decryption code to unlock access to your files. Otherwise your files will be lost. Click here to pay for recovery of files To his shock Mr Motloung realises that he is unable to access any business or personal information. The files on his computer have indeed been encrypted. a) Assume the creator of the spam email is traced and identified as X who lives in Cape Town, South Africa. Discuss in detail whether X can be charged with any crime(s)? Discuss the legal position both before and after the Electronic Communications and Transactions Act 25 of 2002 has come into force. Substantiate your answer by referring to legislation, case law and academic commentary. b) Would it make any difference to your answer if it turns out that X lives in Beijing, situated in China? Discuss and substantiate your answer. [20] QUESTION 3 Discuss in detail whether communications on social media will be admissible evidence in court? By referring to Harvey v Niland and Others 2016 (2) SA 436 (ECG); (2016) 37 ILJ 1112 (ECG) (3 December 2015) indicate whether it would make any difference to your answer if the communications have been obtained illegally or improperly? Discuss in detail and refer, where applicable, to legislation, case law and academic commentary. [20] Question 4 Atlehang is shocked to find out that a fake profile has been set up in her name on a social media platform. The fake profile was set up for Atlehang Nike and includes information such as her date of birth, relationship status and religious views. There is also a fake group linked to the fake profile. It contains statements defamatory of her and her interior decorating business, InStyle. It is alleged that she “owes money and does not pay her suppliers” and furthermore that she is “not to be trusted since she applies unethical financial business practices and is a serious credit risk”. Atlehang consults you as her attorney. Advise her with respect to the following: a) What should Atlehang do to remove the fake profile from the social media platform? (10) B) If she wants to institute a claim for defamation, can the internet service provider (ISP) be obliged to reveal the identity of the anonymous poster of the alleged defamatory statements? Also refer to the position in other jurisdictions. (10) C) Can the internet service provider (ISP) be held liable for the defamatory statements posted on their social media platform by users thereof? (10) Discuss in detail by referring to court cases, legislation (if applicable), and academic commentary. Also refer to the position in other jurisdictions. [30] TOTAL: [100]