POPIA… How will POPI affect the Property Industry

Over the past few years various companies have bought and sold personal data, in order to optimize marketing.  Personal information is a vital part of any estate agent’s business and rightfully so.  Simply put when you instruct an agent to find your dream home, in order for that agent to achieve just that they require a significant amount of personal information from you, the prospective buyer.

On the 19th of November 2013, POPIA was signed into parliament and will come into operation as from the 1stof July 2021.  The purpose of the act is to promote the safeguarding of personal information by putting in place legislation and regulations pertaining thereto. Personal information must be processed lawfully and reasonably in a manner that does not infringe the privacy of a consumer. POPIA protects our constitutional right to privacy,  which right includes the right to protection against unlawful collection, retention, spreading and uses of a data subjects’ personal information.

POPIA Defines a data subject as any person whose personal information is collected and kept by a responsible party.

POPIA defines a responsible party as a public or private body or any other person which alone or in conjunction with others determines the purpose and means for processing personal information and this definition includes an Estate Agent and Conveyancer.

In terms of section 19 a responsible party has a duty to prevent loss, damage or unauthorized destruction of personal information and prevent unlawful access or processing  to personal information.  Measures must be taken to ensure the identity of all reasonably foreseeable internal and external risks are under its control and appropriate safeguards must be established and maintained.  A duty is placed on a responsible party to regularly verify that safeguards are implemented and ensure that safeguards are continually updated in response to new risks or deficiencies previously implemented.

In terms of POPIA an agent may not contact a  customer by phone, email, sms or so called “called calling”, such customer may only be contacted once prior consent has been obtained, therefore when an agent screens a potential buyer same may only be done once prior consent is obtained.

Personal information must be processed lawfully and reasonably in a manner that does not infringe the privacy of an individual by gathering as little information possible.  POPIA Governs how information may be collected and how this information is stored.

Responsible parties now have a duty in terms of POPIA to ensure that there is a high level of security in place from an IT view and the agent must protect all personal information in his or her control by adopting safeguards to prevent unauthorized access, use, destruction, loss, copying or modification.  Furthermore, customers must be provided with copies of all information that an agent has under his or her control and the agent have a duty to disclose how such information will be disclosed. 

Noncompliance can lead to civil litigation or worse criminal prosecution with 1 to 10 years imprisonment or fines up to 10 million.  POPIA will certainly have a massive impact on any person or organization in the property industry , neither agents nor conveyancers will be entitled to pass any information to another person or organization without having obtained proper written consent.

Do not let POPIA get your business down make POPIA real within your business and allow POPIA to innovate your business by:

  1. Appointing an information officer who must be responsible to compile, retain and maintain an information register 
  2. Formulate a breach plan and how to manage such breach, review existing policies and terms and conditions
  3. Review your existing documents, agreements, policies terms and conditions and redraft such to ensure compliance.
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