South Africa – 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.

Reflections on Fellowship and Contesting the Constitution

Photo: Tshepo Madlingozi

The fast pace of legal practice and constant demand on your faculties and capacity in the public interest sector is often a distraction from gaining perspective about our growth as young social justice lawyers. The Bertha convenings serve as important periods for pausing and stretching our minds.

The first year of the fellowship is a wonderful time of terror and optimism. A time of learning the ropes and mastering the tone of the profession. During your second year you are given the opportunity to take on more responsibility in a practice, and this added freedom is an essential part of understanding your own abilities, potential ethics and limitations. As the conclusion of the fellowship approaches and we make the transition to alumni, many of us grapple with the reality of legal practice, the lure of social justice by academia and reinventing our role in the social justice arena.

As young social justice lawyers we are in a unique position to begin to experiment with hybrid careers and opportunities. There is an overwhelming sense that a new path must be forged and exciting long-lost entrepreneurial inklings must be called upon going forward to continue to effect change. The South African Bertha convenings serve as an important pool of ideas from which the fellows can draw from in order to advance new ideas about social justice and our roles within this sector.

We were particularly challenged at this year’s convening titled, “Contesting Power, Privilege and the Constitution” as it was an opportunity to hear the voices we tend to usurp or minimise in the course of litigation. The convening also galvanised fellows and alumni to question the paradigms in which we operate as public interest lawyers in the pursuit of social justice.

We work in a context where South Africa’s dehumanising history still presents itself in our thinking around development and notions of social justice. When Tshepo Madlingozi, a jurisprudence lecturer at the University of Pretoria, asked us about our use of emancipatory tools, many of us came to realise that we had accepted many imposed norms as unassailable purely because we were in the business of doing good.

Madlingozi’s argument was that human rights and, necessarily, social justice are concepts rooted in ‘coloniality of being’. That is, “South Africa’s contemporary social justice sector’s ahistorical and colour-blind fetishisation of human rights, as part and parcel of the economy of recognition – incorporation – distribution, both conceals and entrenches this teleological whiteness.”[1]

This begs the question for us public interest lawyers, operating under the banner of social justice, of whether we are truly effecting change in a post-apartheid South Africa, or whether we unwittingly perpetuate the notion of dehumanising “othering”. In essence, what the convening required of us was to recognise the real struggle of those we purport to represent. It asked us to understand what it was to be poor, black, female identifying, LGBTIQ+, migrant, marginalised, landless, silenced and forgotten.

In as much as Madlingozi encouraged a shift toward the recognition and appropriation of a liberation project, our claim on the advancement of human rights is still framed by a colonial understanding of humanity and law. Thus, if we remain impervious to the paucity of human rights “speak”, we may lose legitimacy in the eyes of those who continue to suffer “dehumanisation and social death”[2]

What about the Constitution? As mentioned above, the theme of the convening envisioned contesting the Constitution. One of the issues that we grapple with in the South African context debate, is our unquestioning defence of the Constitution. On the ground, the lofty ideals in the Constitution scarcely equates to the rectification of injustice. The protection of ill-gotten gains (property) daily reminds the dispossessed, our clients, of their social deaths and social injustice.

What’s more is that civil society in South Africa, of which we are part of and partner with, has been venerated beyond reproach – thus the “liberation project”, as Madlingozi puts it, cannot take form in the face of ahistorical disarming discourse that it deems social justice. As we graduate from the fellowship we will continue to debate and challenge social justice which constitutes temporary relief for those with insecure title and “developing the normative an remedial apparatus for imposing duties on organs of State.”[3] We will also continue to question whether we, as public interest lawyers, can attain the humanising project within the framework of our Constitution.

Mpho Raboeane and Christine Grobler – 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/

[1] T Madlingozi “Social Justice and Neo-Apartheid Constitutionalism”(2017) 28 Stell LR 137.

[2] Ibid at 139.

[3] S Liebenberg “Socio-economic rights beyond the public private law divide” in M Langford, J Dugard, B Cousins and T Madlingozi (eds) Socio-economic Rights in South Africa: Symbols or Substance?(2014) 63 64 as in T Madlingnozi “Social Justice and Neo-Apartheid Constitutionalism” 145.

Lawyering whilst Black

(featured photo of Lunga Siyo, LRC, and Mandisa Shandu, Ndifuna Ukwazi)

I am black-African, young and female, and working in the public interest sector. This is what it means to me:

It means that some of us are first generation graduates; we work with the added pressure of making money in order to financially support our families.

It means that sometimes we do not earn enough to sustain ourselves and our families and so many young, black-African lawyers end up leaving the public interest sector for jobs that they do not necessarily love, but that will make sure that they fulfil their obligations each month.

It means that we work in a sector that is not transformed enough: we see black-African lawyers within our organisations but they are not occupying senior positions.

It means that there has to be policies put in place, such as briefing policies, in order to hold organisations “accountable” for who they brief, or their failure to brief black counsel.

It means forming institutions such as the Black Workers Forum to “police” organisations when it comes to transformation….. 33 years after Democracy.

It means that there is a belief that young black lawyers are incapable of competently handling complicated matters or matters seen as falling within specialised areas of law.

It means that other black-African lawyers are afraid of putting their jobs on the line by briefing other black-African counsel because black-African counsel are “inexperienced and can’t take on matters probono”.

And on the burden of being both black-African and female: it means that your male counterparts are taken more seriously than you and that some clients will be more comfortable with their matters being handled by your male colleague.

But let us not forget the beauty of being a black-African lawyer:

As public interest organisations, the majority of our clients are black-Africans. This means that the majority of the work that we do is for our own people and for the betterment of our own people.

We are multi-lingual; we are able to communicate with our clients in a language that is their own. We understand the cultures and traditions of our clients.

We are a point of reference for clients. I have lost count of how many times I have been at court – going about my duties as a Candidate Attorney – and have been approached by members of the public, querying how to find a particular section of the court or how to fill in a domestic violence form. Our black skin means that we will understand better.

As a black-African child, we are taught that every elder is your mother/father or grandparent. For me this has meant that at every workshop or community consultations, I run to the aid of elderly people, making sure that they can get around with ease. My work as a black lawyer comes with a personal touch.

Lawyering whilst black…means that we have challenges; but we do our work anyway and we can understand the plight of our clients in a way that connects us to them.

Sindisiwe Mfeka – 2017 Bertha Justice Fellow

Bertha Convening: A Synergy for Change

Transfixed in my seat, feeling the energy of a collective striving for change and human rights – this is how I felt at the 2017 Bertha Convening, where I sat amongst peers championing for human rights.

In reflection, the Convening truly provided a rare opportunity for legal peers and community representatives from different platforms around the country to come together, shed light on, and interrogate current and deeply entrenched issues plaguing the vulnerable and marginalised in our country. Some of the issues that were raised were of violence against transgender persons, and of mining companies overriding the consent of rural communities by mining on their land. We listened to the plight of farm workers who continue to live on farms where they experience oppression not dissimilar to the Apartheid regime.

Community representatives reminded us young lawyers that we do not need to be lawyers to fight against injustice, as the very essence of a human rights violation is that it encroaches upon one’s humanity. However, they also reminded us of the importance of our role as lawyers in hacking at the chains that still bind so many to oppression of some form. Further, how valuable it is for lawyers and communities to partner if we want to create the change we envision.

The law remains a fundamental tool to challenge the status quo, and help realise the promises made in the Constitution. Lawyers cannot do this without truly getting the perspective of the communities we represent, and whose lives ultimately will be improved by the cases we pursue. The Convening created a supportive space to nurture such a collaboration, and to gain from and learn the different perspectives on these challenging issues.

I will end off by saying that this was my first Bertha Convening and I cannot wait for the next one.

Naushina Rahim – 2017 Bertha Justice Fellow