In the international sphere, courts are clamping down on the use of biometric clocking systems, claiming that it infringes employees' right to privacy and autonomy. Recently, the Israeli National Labour Court ruled that, in relation to a biometric attendance clock, a person's fingerprint constitutes "private information" and that the use of a biometric attendance system infringes an employee's right to privacy.
The Protection of Personal Information Act, No 4 of 2013 (POPI), which was enacted in November 2013, similarly regards biometric data as "personal information". POPI regards personal information as information relating to an identifiable, living, natural person including, but not limited to, biometric information of the person. In fact, POPI regards biometric information as "special personal information", which category of information attracts a prohibition on processing, unless, among other things, the individual has given their consent.
While POPI has not yet been fully implemented, with only those provisions in force that permit the establishment of the regulator, it gives rise to certain considerations that an employer might want to take into account when using or implementing a biometric system. POPI's main purpose is to give effect to the constitutional right to privacy by safeguarding personal information. It prescribes conditions for how a responsible party, or in this case an employer, must process private information that is in their possession. An employer's processing and further processing of personal information will only be lawful if it complies with the eight conditions specified in the Act.
Accountability: An employer must appoint an information officer and register that person with the information regulator;
Processing Limitation: Processing of personal information must be lawful and done in a reasonable manner that does not infringe the employee's privacy;
Purpose Specification: Collection of personal information must be for a particular and lawful purpose, related to a function or activity of the employer;
Further Processing Limitation: An employer will require the employee's consent should it wish to use the employee's personal data for any secondary use;
Information Quality: An employer must ensure that the employee's personal information is complete and accurate;
Openness: An employer collecting personal information, such as an employee's fingerprint data, must take reasonable steps to ensure that the employee is, inter alia, aware of the information being collected and the purpose for which it is collected;
Security Safeguards: An employer must secure the integrity and confidentiality of personal information in its possession or under its control by taking appropriate measures; and
Data Subject Participation: An employee is entitled to be informed what personal information of his or hers is in the employer's possession.
The holder of personal information is expected to take reasonable steps to ensure information security, in line with recent industry standards, and to secure that information from the moment it is captured until it is destroyed.
The risk with biometric data, and specifically where it is stored on a central database, is that it can be hacked. There have been a number of large scale breaches, including a 2015 incident in which the fingerprints of 5.6 million workers were stolen from the US Federal Government Office of Personnel Management. When biometric security is compromised, the damage is long-lasting. Employees can change passwords and access cards following a data breach, but they cannot change their fingerprint.
Once POPI has been fully enacted, employers will be under a statutory obligation to ensure that they adequately secure the integrity and confidentiality of their employees' biometric data. Employers who flout this obligation may be in for a hefty fine of up to R10 million or imprisonment.
In the interim, employers using or intending to use biometric clocking systems would be well advised to ensure that the requisite systems are in place so as to properly safeguard against the risk of security breaches.
Lauren Salt is a Senior Associate, and Tracy Robbins is an Associate at the Employment & Compensation Practice, Baker McKenzie in Johannesburg.