Top lawyer warns about criminal liability as Meta smart glasses get official South African launch

However, recording footage and then publishing it to a public audience to monetise it, promote a business, or build a following means that a wearer must comply with POPIA.
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Except POPIA does not deal with this at all. What happens in public is still a matter of public discourse.
 
Swa said:
Except POPIA does not deal with this at all. What happens in public is still a matter of public discourse.
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Section 1 of POPIA covers information relating to identifiable people, including footage. Being in public isn’t an exemption. Appearing incidentally in a street scene differs from being deliberately filmed and featured, but neither automatically settles whether the use is lawful.
 
quovadis said:
Section 1 of POPIA covers information relating to identifiable people, including footage. Being in public isn’t an exemption. Appearing incidentally in a street scene differs from being deliberately filmed and featured, but neither automatically settles whether the use is lawful.
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Standard uses still apply. No court has ruled otherwise.
 
Swa said:
Standard uses still apply. No court has ruled otherwise.
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"Standard uses" isn’t a legal exemption. Sections 1 and 3 cover processing identifiable people’s information, section 7 qualifies the exclusion for journalism and artistic expression. You don’t need a court ruling about smart glasses for existing law to apply.
 
This is actually the relevant section
Exclusion for journalistic, literary or artistic purposes
7. (1) This Act does not apply to the processing of personal information solely for the
purpose of journalistic, literary or artistic expression to the extent that such an exclusion
is necessary to reconcile, as a matter of public interest, the right to privacy with the right
to freedom of expression.
(2) Where a responsible party who processes personal information for exclusively
journalistic purposes is, by virtue of office, employment or profession, subject to a code
of ethics that provides adequate safeguards for the protection of personal information,
such code will apply to the processing concerned to the exclusion of this Act and any
alleged interference with the protection of the personal information of a data subject that
may arise as a result of such processing must be adjudicated as provided for in terms of
that code.
(3) In the event that a dispute may arise in respect of whether adequate safeguards
have been provided for in a code as required in terms of subsection (2) or not, regard
may be had to—
(a) the special importance of the public interest in freedom of expression;
(b) domestic and international standards balancing the—
(i) public interest in allowing for the free flow of information to the public
through the media in recognition of the right of the public to be informed;
and
(ii) public interest in safeguarding the protection of personal information of
data subjects;
(c) the need to secure the integrity of personal information;
(d) domestic and international standards of professional integrity for journalists;
and
(e) the nature and ambit of self-regulatory forms of supervision provided by the
profession.
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POPI does not replace any legislation as far as public discourse is concerned. When it comes to freedom of expression courts have almost universally confirmed that except in extreme cases like child pornography it trumps almost anything including acts like POPI.
 
quovadis said:
"Standard uses" isn’t a legal exemption. Sections 1 and 3 cover processing identifiable people’s information, section 7 qualifies the exclusion for journalism and artistic expression. You don’t need a court ruling about smart glasses for existing law to apply.
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Section 1 appears to be a definition of terms and the relevant part seems to be "personal information" which doesn't include footage.
 
Swa said:
This is actually the relevant section

POPI does not replace any legislation as far as public discourse is concerned. When it comes to freedom of expression courts have almost universally confirmed that except in extreme cases like child pornography it trumps almost anything including acts like POPI.
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Swa said:
Section 1 appears to be a definition of terms and the relevant part seems to be "personal information" which doesn't include footage.
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Read the definition again. “Personal information” means information relating to an identifiable, living, natural person, “including, but not limited to” the listed examples. The list is illustrative, not closed, so footage not being named in it setttles nothing. The test is identifiability and a face is about as identifying as it gets.

The same section removes any doubt. “Record” expressly includes a “photograph, film, negative, tape or other device in which one or more visual images are embodied” and “processing” includes collection, recording and dissemination. Section 3 then applies the Act to personal information entered in a record. Filming an identifiable person and uploading it ticks all of those.

On section 7, which you quoted: it applies to processing “solely” for journalistic, literary or artistic expression and only “to the extent that such an exclusion is necessary” to reconcile privacy with freedom of expression. That is a qualified balancing test, not a pass for anything filmed in public. Content published to monetise or promote a business is hard to fit under “solely” and expression doesn’t trump everything here. That’s the American position. The Constitutional Court ruledd freedom of expression is not a pre-eminent right ranking above the others. It gets weighed against privacy and dignity under section 36 and POPIA is the legislation giving effect to the section 14 privacy right.
 
quovadis said:
Read the definition again. “Personal information” means information relating to an identifiable, living, natural person, “including, but not limited to” the listed examples. The list is illustrative, not closed, so footage not being named in it setttles nothing. The test is identifiability and a face is about as identifying as it gets.

The same section removes any doubt. “Record” expressly includes a “photograph, film, negative, tape or other device in which one or more visual images are embodied” and “processing” includes collection, recording and dissemination. Section 3 then applies the Act to personal information entered in a record. Filming an identifiable person and uploading it ticks all of those.
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You are applying your own interpretation of what is not excluded. "Record" refers to the medium by which information is stored and does not refer to the type of information. "Photograph" does not necessarily refer to taking a photograph of a person but rather e.g. taking a photograph of a person's personal information in order to store it.

But assuming you are correct, this is nothing new. These very objections were made when the act was drafted which is why chapter 7 was added. If not it would likely have been referred to the constitutional court and declared unconstitutional as freedom of expression is also a constitutional right.

quovadis said:
On section 7, which you quoted: it applies to processing “solely” for journalistic, literary or artistic expression and only “to the extent that such an exclusion is necessary” to reconcile privacy with freedom of expression. That is a qualified balancing test, not a pass for anything filmed in public. Content published to monetise or promote a business is hard to fit under “solely” and expression doesn’t trump everything here. That’s the American position. The Constitutional Court ruledd freedom of expression is not a pre-eminent right ranking above the others. It gets weighed against privacy and dignity under section 36 and POPIA is the legislation giving effect to the section 14 privacy right.
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We don't differ much from the American position. FYI I didn't say it trumps everything but that it trumps almost everything except for clear exceptions. Where we differ is in making racism a political issue instead of a constitutional one and criminalising it.

What you don't realise is that a balance of rights does not mean everything receives equal weight. Freedom of expression is given more weight and there should be a very good reason when it is restricted. A person objecting to a photo of them being published because it constitutes, in their view, personal information isn't enough to satisfy this.

When it comes to publishing content you are dealing with a person's right to how their image is used. That doesn't just mean their visual image and it has nothing to do with privacy and dignity and or with POPI. The laws surrounding that were well established decades before.
 
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I can actually only find one section dealing with dignity.
(7) A person who enters and searches any premises under this section must conduct the entry and search with strict regard for decency and order, and with regard to each person’s right to dignity, freedom, security and privacy
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That deals with law enforcement and not with protection of personal information.
 
Top lawyer :ROFL:

WTF is that? The lawyer of "Top"?
It certainly does not refer to any particular achievements or skills!? All lawyers have some skills, that is how they became lawyers. Skills sets may differ over a variety of fields.
 
Swa said:
You are applying your own interpretation of what is not excluded. "Record" refers to the medium by which information is stored and does not refer to the type of information. "Photograph" does not necessarily refer to taking a photograph of a person but rather e.g. taking a photograph of a person's personal information in order to store it.

But assuming you are correct, this is nothing new. These very objections were made when the act was drafted which is why chapter 7 was added. If not it would likely have been referred to the constitutional court and declared unconstitutional as freedom of expression is also a constitutional right.
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You started with “POPIA does not deal with this at all”. Now we’re debating how the journalism exclusion works and how much weight free expression gets when balanced against it. That’s a different argument and it only makes sense if POPIA applies in the first place.

In plain terms: if you film someone who can be recognised and publish it, that’s their personal information and the Act covers it. There’s a carve-out for genuine journalism and art and a separate one for purely personal use. Outside those, you need a lawful reason to publish.

That doesn’t mean every video filmed in public is illegal. It means “it was in public” isn’t the end of the question, which is all I said in the first place.
Swa said:
We don't differ much from the American position. FYI I didn't say it trumps everything but that it trumps almost everything except for clear exceptions. Where we differ is in making racism a political issue instead of a constitutional one and criminalising it.

What you don't realise is that a balance of rights does not mean everything receives equal weight. Freedom of expression is given more weight and there should be a very good reason when it is restricted. A person objecting to a photo of them being published because it constitutes, in their view, personal information isn't enough to satisfy this.

When it comes to publishing content you are dealing with a person's right to how their image is used. That doesn't just mean their visual image and it has nothing to do with privacy and dignity and or with POPI. The laws surrounding that were well established decades before.
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What I don’t realise? You opened with “POPIA does not deal with this at all” and you’re now three posts deep explaining how it should be balanced. For an Act that doesn’t apply, you’ve developed a lot of opinions on how it applies.

On the substance:

We are not close to the American position. The Constitutional Court said so in S v Mamabolo and held unanimously in Khumalo v Holomisa that free expression is “not a paramount value”. It gets weighed against privacy and dignity, with no head start.

It also isn’t about someone “objecting”. The Act puts the duty on the publisher to have a lawful reason, like consent or a legitimate interest. Whether the person in the video complains is beside the point.

And the image rights you say have “nothing to do with privacy and dignity” are built on exactly those. Grütter v Lombard and Kumalo v Cycle Lab both protect a person’s image as part of their dignity, identity and privacy. So you’ve now argued that publishing someone’s image is legally restricted, which was my position in post #4.
 
Well, let's be honest unless there are several styles, very few people would want to be caught dead wearing those things anyway. Possibly the ugliest glasses I have ever seen.
 
Bad Ballie said:
Well, let's be honest unless there are several styles, very few people would want to be caught dead wearing those things anyway. Possibly the ugliest glasses I have ever seen.
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Wayfarers are timeless. Designed in the 50s with various resurgences since then. Innocuous enough that your grandma could pull them off.

These would suit your bleached tips better.
IMG_3697.jpeg
Follow me for more style advice.
 
No difference from a mobile phone that can record - just another useless article.

More interested in the local distribution as EssilorLuxottica doesn't show a South African footprint on their website, so who and how are these going to be distributed locally?
 
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