Various terms such as ―Information Revolution,‖ ―Information Age‖, ―Information Society‖, ―New Economy‖, ―data‖, ―information‖, ―data processing‖, ―data protection‖
and ―Trans-border data flow‖ have been used thus far and require clarification. Even though precise definitions may not be possible for some of these terms, they do convey a sense of the importance that information has assumed in human societies today. These terms have frequently been used interchangeably and not surprisingly so, because they all denote the creation, manipulation and use of information, particularly in the creation of wealth. These concepts will be used frequently in the course of this research.
3.1 “Information Revolution”, “Information Society”, “Information Age”
The ―Information Revolution‖ generally refers to the dramatic changes that have taken place in virtually every sphere of human activity particularly in the economic sector, from the last half of the 20th century to the present. The phrase is often used interchangeably with ―Information Age‖ and ―Information Society‖. It is characterised by the dramatic increase in the creation, use, management and dissemination of information aided by computers, telecommunications/mass media and the Internet. The use of information technologies results in increased productivity. It is a revolution based on information and driven by ICTs.94
94 See n 1.
28 3.2 “New Economy”/ “Information Economy”
According to Samuelson and Varian,95 the term ―Information Economy‖ dates back to the 1980s when it referred to an economy driven by services rather than manufacturing. In 1996 however, Michael Mandel published an article in Business Week called ―The Triumph of the New Economy‖96 which emphasised the development of a technology-driven, fast-growing, low-inflation economy, which he referred to as ―the New Economy‖. This New Economy is characterised by three interrelated features: (i) information, (ii) networking (powered by the Internet), and (iii) globalisation. The term ―Information Economy‖ is often used interchangeably with ―New Economy‖. The New Economy (or Information Economy) is clearly an outcome of the Information Revolution.97
3.3 Data
Data are raw facts and figures; by themselves they are not immediately useful until they are put in context by means of processing. Typically data are processed when the data are fed into a computer (called input), where they are stored and processed before they are transmitted to a human or another computer (called output). During data processing, computers are simply used to transform facts from one medium to another. Data processing may involve several stages in which case the "processed data" from one stage may be considered the "raw data" of the next.98
95 Samuelson and Varian The "New Economy" 1 [online].
96 Mandel 30/12/96 Businessweek.
97 Ibid.
98 Perrolle Computers and Social Change [online].
29 3.4 Information/personal information
Once data has been given meaning and context by means of processing,99 it becomes useful information such as audio/video, graphic, numeric or text data.100 Computers produce information when they store, retrieve, or rearrange relationships among data. For example, a telephone book contains data representing the names, addresses, and telephone numbers of people in a region which makes up the information in the phone book.101 According to Roos,102 it is commonplace in the literature on data protection to use data and information interchangeably; the same is the case in this study.
Personal information is the set of all data that is associated with a specific individual, for example, date of birth, gender, home address, name of first pet, favourite chocolate, high school of graduation and other similar information. Personal information thus has meaning only through the ways in which it associates or differentiates an individual from others. For the purpose of this thesis "personal information" refers to any information relating to an identifiable individual because that is the definition used in data protection instruments such as the EU Directive.
3.5 Data protection / information privacy
Data protection refers to the legal protection given to an individual in respect of the processing of data concerning him or her by another person or institution. Neethling
99 Processing is defined as converting raw data to machine-readable form and its subsequent processing (as storing, updating, combining, rearranging, or printing out by a computer. See Merriam Webster Dictionary 2010.
100 Encyclopaedia Britannica 2010.
101 The information contained in a phonebook is mostly personal information. Personal information is information about an identifiable individual. According to Waldo et al, personally identifiable information refers to any information that identifies or can be used to identify, contact, or locate the person to whom such information pertains. This includes information that is used in a way that is personally identifiable, including linking it with identifiable information from other sources, or from which other personally identifiable information can easily be derived, including, but not limited to, name, address, phone number, fax number, e-mail address, financial profiles, Social Security number, and credit card information. This is the sense in which it is used in data protection laws. See Waldo, Lin and Millett (eds) Engaging Privacy and Information Technology in a Digital Age 39
102 See Roos The Law of Data (Privacy) Protection: A Comparative and Theoretical Study 18.
30 defines privacy as an individual condition of life characterised by exclusion from the public and publicity. This condition embraces all those personal facts which the person concerned has determined himself to be excluded from the knowledge of outsiders and in respect of which he has the will that they be kept private.103 (Underlining supplied)
Information privacy provides individuals with certain rights over the collection, use and disclosure of their personal information. The two terms, data protection and information privacy, refer to the same privacy interest, namely a person‘s right of control over the storage and usage of data about him- or herself. The two terms are used interchangeably in this thesis.
3.6 Data processing, Trans-border Data Flow (TBDF)
The principal objective of data protection law is to regulate the use of personally identifiable data. The ability to access, acquire, collate and correlate diverse data into personally identifiable information constitutes data processing;104 this has been greatly enhanced by computer technology. The enormous capacity of advanced computing technologies enable commercial enterprises to profile105 large classes of
103 Neethling, Potgieter and Visser Neethling's Law of Personality 270. See also Bernstein v Bester N O 1996 (2) SA 751 (SCA) 789. Arising from this definition, the South African Law Reform Commission has argued that the entrenchment of the right to privacy in section 14 of South Africa‘s Constitution now compels the government to initiate steps to protect neglected aspects of the right to privacy in South Africa, such as data privacy or the protection of personal information. This is because section 7(2) of the Constitution provides that the state must respect, protect, promote and fulfil the rights in the Bill of Rights.
SeeSouth African Law Reform Commission Privacy and Data Protection par 2.1.24.
104 See n 101.
105 The Electronic Privacy Information Center (EPIC) defines profiling as follows:
Profiling is the recording and classification of behaviors. This occurs through aggregating information from online and offline purchase data, supermarket savings cards, white pages, surveys, sweepstakes and contest entries, financial records, property records, U.S. Census records, motor vehicle data, automatic number information, credit card transactions, phone records (Customer Proprietary Network Information or "CPNI"), credit records, product warranty cards, the sale of magazine and catalog subscriptions, and public records. Companies collect information derived from a number of resources to build comprehensive profiles on individuals in order to sell products and to sell dossiers on behavior. This is often done without notice or extending a choice to the individual to opt-out of the dossier building.
See EPIC Privacy and Consumer Profiling [online].
Rosen also observed that ―when intimate information is removed from its original context and revealed to strangers, we are vulnerable to being misjudged on the basis of our most embarrassing, and therefore most memorable, tastes and preferences.‖ See Rosen The Unwanted
31 individuals and the information gained thereby can be used to influence or alter the way people behave and thus become a means of social control.106 Trans-border data flows (TBDF) refer to the exchange of personal information across national boundaries particularly through computer networks and telecommunication lines.107