Following the fact that the Protection of Personal Information Act 4 of 2013 (“POPIA”) became fully effective in mid-2021, we find that the transition often results in confusion between the terms:
- Confidentiality
- Personal Information
- Trade Secrets
The definition of confidentiality is the state of being secret or of keeping secrets. The exact scope is usually agreed upon in a contract.
Personal Information is defined in POPIA as:
“…means Information relating to an identifiable, living, natural person, and where it is applicable, an identifiable, existing juristic person, including, but not limited to—
information relating to the race, gender, sex, pregnancy, marital status, national, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being, disability, religion, conscience, belief, culture, language and birth of the person;
information relating to the education or the medical, financial, criminal or employment history of the person;
any identifying number, symbol, e-mail address, physical address, telephone number or other particular assignment to the person;
(d) the blood type or any other biometric information of the person;
(e) the personal opinions, views or preferences of the person;
(f) correspondence sent by the person that is implicitly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of the original correspondence;
(g) the views or opinions of another individual about the person; and
(h) the name of the person if it appears with other Personal Information relating to the person or if the disclosure of the name itself would reveal Information about the person;….”
Article 39 of the World Trade Organisation’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) lists three requirements for Trade Secrets:
- the Information must relate to and be capable of application in trade or industry;
- it must be secret or confidential, and
- it must be of economic value to the proprietor.
Therefore, the point is that confidential information may not be a trade secret. And confidential information may or may not necessarily be identifiable regarding a specific person or a business. It, therefore, follows that although there could be overlap, personal information is not a catchphrase, nor are the others. It is therefore important to protect confidential information, intellectual property and trade secrets by including it in your agreements. In addition, POPIA imposes obligations as well as rights on all cirtizens and therefore your policies and practices should be aligned and a practical understanding of the provisions be a solid foundation.
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