Cliffe Dekker Hofmeyr (CDH)
Is POPIA doing enough to protect women from gender discrimination?
The Protection of Personal Information Act (POPIA), which aims to protect data subjects from security breaches, theft and discrimination, has taken effect, and will influence the way that the data belonging to individuals is used online.
In the POPIA context, “discrimination” extends to a range of classifications which include (but are not limited to) race, sexual orientation, physical ability and gender – the latter of which is of particular interest as we celebrate Women’s Month.
You may wonder what data privacy has to do with gender or women’s issues. The answer lies in a digital phenomenon known as “algorithmic profiling” – a way of detecting patterns in our online behaviour, and making predictions based on those patterns.
The problem arises when specific data is used to classify a user as a member of a group and to make assumptions based on that classification. This is known as “social sorting,” which is a form of discrimination. We see this “automated discrimination” playing out most commonly in fields like insurance, personal finance, differential pricing and policing. For example, due to “probabilistic assumptions” that are de-individualized, women are subject to “pink tax”, which sees them being charged more for personal hygiene products than those marketed to men.
So the question arises, what is POPIA currently doing – and is it enough – to protect women from gender discrimination? And are the current legal tools sufficient to address gender-based profiling, targeted marketing and tracking?