Realising Rights

Facebook in South Africa: Are we protected?

On 17 March 2018, the New York Times and the Observer of London broke the news that the SCL Group and Cambridge Analytica used the data of 50 million Facebook users – without their knowledge or permission – to help the Trump campaign to influence the US elections. (The original New York Times article can be found here).

In Britain, Cambridge Analytica is facing investigations by Parliament and Government Regulators into allegations that it performed illegal work on the “Brexit” campaign. Closer to home, reports have surfaced that the companies played a role in President Uhuru Kenyatta’s 2013 and 2017 campaigns for the Kenyan Presidency. The Managing Director of the company has claimed that not only did they conduct a survey, but “rebranded the entire party twice, written their manifesto” and “then we’d write all the speeches and we’d stage the whole thing – so just about every element of the campaign”.

There has been a huge uproar in the US and UK with Mark Zuckerberg being called before the US Congress and UK parliamentary panel to answer questions on the debacle. Zuckerberg is set to appear before Congress today and tomorrow, but has declined the invitation to appear before the UK parliament.

The data of 50 million users which is at the heart of the congressional inquiry was collected over a number of years by Aleksandr Kogan, an academic based at the University of Cambridge, who developed an app which not only gathered data from the people paid to download it (people were paid to download the app which was advertised on a website for doing odd jobs online), but from all of those people’s friends as well. Reportedly, of the 50 million Facebook users whose data was collected, only 270 000 of those users had consented to having their data harvested. All that the researcher divulged to Facebook and the users was that he was collecting information for academic purposes.

It is now reported that approximately 60 000 South Africans’ data may have been breached after as few as 330 people downloaded the app designed by Aleksandr Kogan.

Facebook’s lax privacy policies have been called into question before. The American Civil Liberties Union (ACLU) has for years been calling on Facebook to clean up their act and implement more stringent data protection. (See the full ACLU post here)

In 2009, the ACLU warned against the lack of privacy when you took online quizzes:

‘Even if your Facebook profile is “private,” when you take a quiz, an unknown quiz developer could be accessing almost everything in your profile: your religion, sexual orientation, political affiliation, pictures, and groups. Facebook quizzes also have access to most of the info on your friends’ profiles. This means that if your friend takes a quiz, they could be giving away your personal information too.’

In 2016, the ACLU in California also discovered, through a public records investigation, that social media surveillance companies like Geofeedia were improperly exploiting Facebook developer data access to monitor Black Lives Matter and other activists. They again sounded the alarm to Facebook, publicly calling on the company to strengthen its data privacy policies and “institute human and technical auditing mechanisms” to both prevent violations and take swift action against developers for misuse.

The ACLU reports that Facebook has modified its policies and practices over the years to address some of these issues. Its current app platform prevents apps from accessing formerly-available data about a user’s friends. And, after months of advocacy by the ACLU along with the Center for Media Justice and Color of Change, Facebook prohibited use of its data for surveillance tools.

Facebook’s response to the Cambridge Analytica debacle demonstrates that the company still has significant issues to resolve. The ACLU points out that Facebook knew about the Cambridge Analytica data misuse back in December 2015 but did not block the company’s access to Facebook until hours before the current story broke. And its initial public response was to hide behind the assertion that “everyone involved gave their consent,” with executives conspicuously silent about the issue. It wasn’t until Wednesday, 21 March 2018, that Mark Zuckerberg surfaced and acknowledged that this was a, “breach of trust between Facebook and the people who share their data with us and expect us to protect it,” and promised to take steps to repair that trust and prevent incidents like this from occurring again.

The question remains: how will Facebook improve its privacy and data retention practices? With the EU General Data Regulation coming into force in May 2018, Facebook will be forced to comply with privacy principles which run contrary to its established business model. These include: having to request Facebook users’ consent in clear and unambiguous language to process their private data, mandatory notification of users when a data breach occurs, and providing users the ‘right to be forgotten’ which would empower users to demand that Facebook delete their data, stop any further dissemination and require third parties associated with Facebook stop any further processing of the data.

In South Africa, the Protection of Personal Information Act (POPI), upon coming fully into operation, will apply to the processing of data of the type used by Cambridge Analytica. Facebook and Cambridge Analytica would constitute the ‘responsible party’ and ‘operator’ respectively, placing certain duties on Facebook and Cambridge Analytica. South African Facebook users would have recourse with the Information Regulator or courts were a similar breach of data to occur after the commencement of the Act. Their claim would lie in the fact that Facebook would have breached the conditions for lawful processing of data laid out in Chapter 3 of POPI. These conditions include requirements similar to those in the EUGDR, such as: further processing limitation, which requires Facebook to only allow further processing of personal information which is reasonably related to the initial reason the data was collected for; security safeguards, meaning that Facebook would have to take reasonable and appropriate measures to ensure that the integrity and confidentiality of the data is ensured; and data subject participation, which gives the user the right to request confirmation that Facebook has their personal information, and request that this information be corrected or deleted.

View the full ACLU post by Nicole Ozer, Technology & Civil Liberties Director, ACLU of California and Chris Conley, Policy Attorney, ACLU of Northern California Technology and Civil Liberties Project and their suggestions here.

By: Alexandra Ashton and Tsanga Mukumba

Disclaimer: The opinions expressed by the Realising Rights bloggers and those providing comments are theirs alone, and do not reflect the opinions of the Legal Resources Centre. The Legal Resources Centre is not responsible for the accuracy of any of the information supplied by the bloggers.

Umhlaba: The Land

One of my favourite topics is the issue of land in South Africa. A recent judgment by the Supreme Court of Appeal reinforced the criticism by land activists that government’s decisions seem to favour land owners.

The Right to Property enshrined under section 25 of our Constitution is certainly one of the most contested rights in South Africa. It provides for the right to property and precludes the state from depriving a private owner of his/her property without compensation. Put differently, the Constitution requires that when a claim for land is made (usually by a previously oppressed individual), the land owner must be compensated by the State. When determining compensation, the court must apply a “just and equitable” test, taking into account the factors listed in s 25 (3) (a) – (e) of the Constitution, and intervene and make a decision where there is no agreement regarding the amount of the compensation.

It is further provides that, “the amount of compensation and the time and manner of payment must be just and equitable, reflecting an equitable balance between the public interest and the interests of those affected, having regard to all relevant circumstances”. Interpretation of this law should entail a consideration of: a) The current use of the property; b) The history of the acquisition and use of the property; c) The market value of the property; d) The extent of direct state investment and subsidy in the acquisition and beneficial capital improvement of the property; and e) The purpose of the expropriation.

In a recent land claim judgment, the Supreme Court of Appeal, in the case of Uys N.O and Another v Msiza and Others (1222/2016) [2017] ZASCA 130 (29 September 2017), awarded the amount of R1,8 million as, “just and equitable for the acquisition of the property”. The SCA overturned an earlier judgment in the Land Claims Court which found that the value of the compensation to be paid to the land owners was R1,5 million, which was R300 000 less than amount valuated by the State’s expert. Instead, the SCA found that the valuation by the State expert took into account some of the factors listed in the Constitution and could not find any justification for deducting R300 000.

Mr Msiza and his family resided on the farm as labour tenants since about 1936. On 5 November 1996, Mr Msiza’s father successfully lodged a claim for an area of land situated on the farm, to be awarded to him on the grounds that he had been a labour tenant in terms of Land Reform (Labour Tenant) Act of 1996. A Trust became the owner of the farm on 9 May 2000. The Trust had acquired the property for a price of only R400 000 for the entire farm (352.5033ha) while being aware that the Msiza family occupied the land. The low cost of the land was probably influenced by the fact that Mr Msiza was residing on the farm and had lodged a claim against the entire farm.

The Msiza family was eventually awarded only 45.8522ha of the entire land, which was 306.6511ha less than the land initially claimed by the family. There had been no change on the actual use of the land and no significant investment made by the Trust on the land, including the land awarded to the Msiza family, since it was purchased by the Trust. The Trust wanted R4,36 million as compensation for the 45.8522ha of land awarded to the Msiza family, which was rejected by the Land Claims Court.

However, I question whether the R1,8 million valued by the State as compensation is just and equitable compensation and in the public interest, given the fact that; firstly, the Trust had purchased the entire piece of land for a sum much less than the market value at the time; secondly, the Trust purchased the land well aware of land claim; thirdly, there had been no change to the use of the land and no significant investment on the land; and fourthly, the Msiza family were only awarded 45.8522ha of the land, 306.6511ha less than the land initially claimed by the family.

Section 25 of our Constitution was not intended to fund the commercial aspirations of private landowners. The section exists to ensure that public money is distributed fairly, considering the Constitution’s commitment to rectifying the racially discriminatory distribution of land, which occurred over three centuries in our appalling history.

I therefore ask: is it in the public’s interest to compensate and benefit private individuals who acquire property, well aware of a land claim from a person or community, as was the case in the Msiza land claim?

Lungelo Baleni – 2017 Bertha Justice Fellows

The Annual Bertha Convening is supported by the Bertha Foundation. We would like to thank them for their support of the next generation of young human rights lawyers. Read more about the Bertha Foundation and Bertha Justice Fellows here: http://berthafoundation.org/

Building trade union effectiveness through human rights and the law

The relationship between non-governmental organisations (NGOs) and trade unions is very important in that their joint impact on social and political issues can be very powerful when they work in sync. In the same light, when their joint agenda fails, it can be a setback for both parties.

Both NGOs and trade unions provide important assistance to the communities which they serve. They have more things in common than not, and the most important way they can contribute to democracy is through the improvement of civil society and ensuring that the dignity of those they serve is restored.

With that being said, it is important to note the circumstances under which NGOs and trade unions can co-operate, the various obstacles they may acquire and the conflicts of interests that may arise.

Trade unions have a long history and so do NGOs. It may seem that, due to globalisation, NGOs may have gained a wider scope and reach than trade unions and the impact of trade unions remains domestically focussed, despite the globalisation of the market space.

Trade unions have identified with the struggle of human rights since apartheid. We can see the rich history of activism through the growth of worker rights, but also as workers are now being recognised as part of society. In fighting for workers, trade unions have liberated those who were dependent on them.

In the early 2000s, trade unions became a key component of democracy as agents of social change but that role has since evolved, with the spotlight falling largely on NGOs. Trade unions have not been completely silent, and we see their stern presence in the courts and in key judgments that have shaped the labour market and labour law.

One thing we can be certain of is that trade unions will not be phased out any time soon. Despite the greater political influence, they still play a key role in the workplace and the market.

The status quo of trade unions after the Marikana massacre changed and led to the breakaway of members to form their own unions, such the Association of Mineworkers and Construction Union (AMCU). The aftermath of Marikana showed how workers had lost faith in trade unions because leaders focussed on the pursuit of political gains instead of the wellbeing of their representative workers. Through this distress of workers, we have seen a breakthrough in NGO interventions through having trade unions held accountable as representative bodies of workers and employers implementing effective suitable work standards.

In South Africa, it is not easy for an employee who is not part of a union to seek help outside the scope of options made available by legislation, that being the Commission for Conciliation, Mediation and Arbitration (CCMA) and trade union structure. This means that it not easy for NGOs to assist workers to assert their rights unless all avenues have been exhausted. That means that the employee may be helpless to assert their rights, to a certain extent. This is where the cooperation of NGOs and trade unions is needed.

NGOs and trade unions should have worker rights at the heart of their work and cooperation between the two is the only way we can advance the landscape of worker’s rights. If they fail, they will fail to unshackle the restraints of migrant and casual labour and will not be able to overcome the violations of human rights that continue to occur; such as unfair dismissals and non-payment of benefits, worker exploitation.

Bathandwa Xhallie – 2017 Bertha Justice Fellow

Mining Affected Communities: We need more than on-paper Social and Labour Plans

(Photo: An informal settlement close to the Lonmin mine, where 34 people were killed when police opened fire on protesting mine workers)

Mining within communities is viewed as a conduit for further development of the community. It creates an expectation of an improved standard of living and gives the community a sense of hope for better and sustainable living. This hope is often hindered by the breakdown in communication with respect to the implementation and the sustainability of the perceived progression of development. Was the Marikana massacre not the perfect example of a fatal breakdown in communication between the miners, their union representatives and Lonmin?

In looking at the socio-economic situation of the clients that approach civil society on a daily basis with cries of injustice in their communities, the land beneath their feet is the wealthiest. As a result, most of the communities affected by mining are those with very little economic freedom. But, after the granting of the mining permit, there is often even less economic freedom and often dire consequences for communities.

To ascertain whether there is mineral deposit on a piece of land, an application must be made for a prospecting right. No two people can hold a prospecting right, mining right, mining permit or retention permit for the same mineral and land at the same time. Communities on land on which there is a land claim are therefore in a state of uncertainty about who owns the mineral rights. Could mine companies be capitalising on the chaos?

Let’s assume, in this instance, that all the necessary land acquisition processes and procedures have been meticulously complied with. In order to obtain a mining right in South Africa, you have to have complied with the Mineral and Petroleum Resources Development Act (MPRDA). The Social and Labour Plan (SLP) is an important document that the Department of Mineral Resources has to assess to establish the benefit that will extend to the community in granting the permit.

Being a legally binding document, the SLP ought to be enforceable in a community; yet why is it that graduates in rural communities in which there is mining activity cannot complete their in-service training with such a mine? Or, the local councillor has neither a seat nor a say in the meetings held by the mining company? Is this a lack of representation in a democratic country?

The community of Mahlabathini in KwaZulu Natal is currently affected by coal mining activity and a “smokescreen” SLP. The traditional authorities of the area have isolated the local councillor for political reasons, resulting in her having no knowledge of the decisions taken that affect her community. Community members that worked at the mine and have since been retrenched have not been given any severance packages. The Municipality has cut off the water supply in the community; yet the mine has adequate water supply to remain fully operational. The trucks driving to and from the mine have run over livestock and children, with no compensation to the bereaved families.

With a mining permit being rewenable every 5 years, we must wonder why this would be renewed when the community has not benefitted from the mining activity as per the SLP – and in fact, has suffered considerably.

A report by the Centre for Applied Legal Studies (CALS) in March 2017 confirms that SLP’s are a requirement that is rarely enforced by mining companies. It is important to take cognisance of the fact that enforcement and accountability will not always lie with the same office. Budget may be allocated for the social-economic development of a community; however, community members give proxy to a representative who is their voice and is responsible for ensuring the upkeep of their communities’ best interests.

One cannot point a finger at the mining company alone, or the representatives of the community, for not being accountable where necessary. However, tension is bound to rise where there is no transparency. Accountability and transparency become fundamental in the socio-economic enforcement of rights in affected communities.

A more concerted effort and vigour by all the role-players is needed to question, challenge and call to book those in positions of power when decisions are made that affect communities.

The richness of the land has moved from below the feet the community to the hands of the decision-makers.

Nokukhanya Nkatha – 2017 Bertha Justice Fellow