WhatsApp’s New Privacy Terms: Data Protection and Privacy Laws in South Africa

In January 2021, WhatsApp announced that it would be altering its privacy terms to share data with Facebook causing panic among WhatsApp users. Users that want to continue using WhatsApp’s services have no choice but to agree to these new privacy terms. WhatsApp is a messaging platform used globally as an alternative to normal SMS or device-specific texting platforms such as iMessage or BBM, hence the hysteria causing millions of users to flee to alternative platforms such as Signal and Telegram.  Much of the concern over these new privacy terms is due to a lack of understanding from the general public regarding privacy laws, particularly in relation to the internet and social media. Many people were under the impression that the content which they shared on WhatsApp at face-value such as text messages, media and status’ will now be shared and posted on Facebook as well. The contrary is true, it is the information and data gathered internally that will be shared with Facebook. 

WhatsApp’s new privacy policy will share data with Facebook regarding “fighting spam across apps, making product suggestions, and showing relevant offers and ads on Facebook”. Additionally, data-sharing will occur to further business communications “such as through order, transaction, and appointment information, delivery and shipping notifications, product and service updates, and marketing.” To avoid spam, WhatsApp indicated that its users “can manage these communications, and [WhatsApp] will honor the choices [made]”. Furthermore, WhatsApp specified that nothing shared by a user on the platform “including your messages, photos, and account information, will be shared onto Facebook or any of [their] other family of apps for others to see” and vice versa. WhatsApp re-assures its users that neither it nor other third parties can read our messages due to end-to-end encryption and other security features. 

The concern raised by WhatsApp users indicates that people would like to protect their privacy as much as possible in the digital age. In South Arica, the Constitution of the Republic of South Africa, 1996 guarantees everyone the right to privacy which includes the right not to have the privacy of their communications infringed. The Protection of Personal Information Act 4 of 2013 (POPIA) is the main regulatory body of relevance in this regard. POPIA sets conditions explaining when it is lawful for someone’s personal information to be processed and places legal obligations on the person or organisation processing such information to do so with the highest regard. These standards include- 

  • Accountability. Being held responsible for ensuring compliance. 
  • Processing limitation. Collect only the necessary information. 
  • Purpose specification. Define the scope of the information being processed in relation to a specific purpose. 
  • Prohibition on passing information. Information cannot be sold or passed on unless there is compatibility with the original purpose. 
  • Information quality. The information processed must be correct, complete and accurate. 
  • Openness. The person must be notified that such information is being collected. 
  • Security safeguards. Implement and maintain measures to secure the integrity of the information. 
  • Participation. A person whose information is being processing must be able to access, view and correct the information held. 

POPIA came into effect on 1 July 2020 and organisations have until 1 July 2021 to comply. 

Due to the confusion caused by WhatsApp’s announcement regarding its privacy policy, they have moved the acceptance date from 8 February 2021 to 15 May 2021. The delay will give people enough time to review the new privacy terms as well as allow Facebook and WhatsApp to clarify what the new privacy terms entail. In South Africa, the Information Regulator (an independent body) established by POPIA met with Facebook South Africa to analyze WhatsApp’s new privacy terms in order to establish its compliance with POPIA. There is currently no update, but it is comforting to know that we have someone ensuring data protection over the internet and upholding the constitutional right to privacy in South Africa.

In the digital age, it is important to not get ‘caught up in the hype’ which can be difficult since information spreads quickly. It is noteworthy that each and every social media platform has its downfalls. Users must do their best to protect their privacy by choosing to implement privacy settings to their social media accounts. Luckily, South Africa has adopted the POPIA to aid regulation in this regard. 

About the author:  Caitlin Naidoo, The Centurion Law Group