TO PUBLISH OR NOT TO PUBLISH
This was the question that the Pretoria High Court had to consider, in relation to the publication of matric results in newspapers.
On Wednesday, 8 January 2025, the Information Regulator (“Regulator”) and the Department of Basic Education (“DBE”) were before the High Court to argue the urgent application, launched by the Regulator, that sought to stop the DBE from publishing the 2024 matric results in newspapers.
Judge Tolmay dismissed the urgent application, with costs, for lack of urgency. This means that the 2024 matric results will be published in newspapers on 14 January 2025.
Nevertheless, it is important to take the step back and consider the POPIA context within which this dispute arises.
On 6 November 2024, the Regulator issued an enforcement notice to the DBE, setting out the DBE’s breach of conditions for lawful processing of personal information, in line with POPIA. The Regulator identified the following breaches:
- The DBE failed to obtain consent of learners, above 18 years old, and the consent of parents or guardians of learners, below 18 years old, for the publication of the learners’ matric results in newspapers
- The DBE failed to show that the publication of the matric results in newspapers was linked to a contractual or legal obligation
The enforcement notice ordered the DBE to publish the 2024 matric results through POPIA means, such as learners collecting their results directly from the school, or the DBE devising a secure SMS platform for learners to obtain their results confidentially.
In essence, what does all this mean?
- First, the Regulator considers the examination numbers of learners to be personal information, as defined in POPIA.
- Second, the Regulator does not consider the DBE’s current method of publishing matric results in newspapers to be POPIA compliant, as informed consent has not been obtained from the learners and/or the parents or guardians of the learners.
- Third, the Regulator prioritises alternative, POPIA compliant means to be used for the publication of matric results, so as to ensure that the personal information of learners is processed ethically and confidentially.
Notwithstanding the Regulator’s urgent application being dismissed, the dispute between the Regulator and the DBE continues and will be ventilated in Court in due course.
In closing, this dispute highlights the centre stage that POPIA considerations will take, not only in instances of commercial transactions or the processing of personal information of adults, but personal information of learners alike.
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