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The publication of matric results: what is the legal position under POPIA?

Matriculants buy the Cape Argus newspaper to look for their matric results. Picture: Cindy waxa

Matriculants buy the Cape Argus newspaper to look for their matric results. Picture: Cindy waxa

Published Jan 12, 2022

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By Nadine Mather

The Department of Basic Education (DBE), on Monday, announced that the usual practice of publishing matric results on media platforms would not take place for the 2021 results.

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DBE spokesperson Elijah Mhlanga said this was in line with the Protection of Personal Information Act (POPIA), 2013 (Act No 4 of 2013) which came into effect in July 2021. An act put in place for the protection of private information against the unlawful collection, retention, dissemination and use of personal information.

Before 2014, matric results were published displaying each learner’s name. In an effort to protect the identities of learners, from 2014 onwards, matric results were published displaying only the learner’s identity number or examination number without displaying their name

It has been argued that a learner’s examination number would not constitute personal information because by removing the learner’s name, the public would not know to which individual learner the marks in question relate.

For purposes of POPIA, personal information is information relating to an identifiable, living natural person, and where applicable, an existing juristic person. It expressly includes an individual’s educational history, an individual’s name if it appears with other personal information, an individual’s identity number and any other identifying symbol, such as an examination number.

The processing of personal information under POPIA

In terms of POPIA, personal information may only be processed on limited justifiable grounds. These grounds include where (i) the processing is necessary to comply with an obligation imposed by law, (ii) the processing protects a legitimate interest of the individual concerned or (iii) the individual consents to the processing.

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Whilst the National Schools Act together with the National Protocol on Assessment prohibits the withholding of results for any reason whatsoever, there does not appear to be a legal obligation on the department to make the matric results publicly available.

Further, while there may be an argument that the publication of the matric results may be in the legitimate interest of the learners who are unable to attend their schools to obtain their results, this may only apply to a small portion of the learners concerned. In the circumstances, the department is likely to require the consent of each learner to make their matric results publicly available. It is for this reason that the department has advised that all learners will be required to obtain a statement of their results from the schools that they attended.

The processing of personal information of children

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Insofar as learners are below the age of 18, they will be regarded as ‘children’ for purposes of POPIA. The act affords additional protection to the processing of personal information of children. In this regard, there is a general prohibition on the processing of children’s personal information, unless, for example, the processing is carried out with the prior consent of the child’s legal guardian.

The personal information of children may also be processed if it is for historical, statistical or research purposes, to the extent that the purpose serves a public interest, and it would not be reasonably possible to obtain consent. It may be in the public interest to, for example, publish the total pass rate of learners or the average of the results relating to specific subjects or provinces. It may be difficult to argue, however, that the purpose of publication of each learners’ matric results would serve a public interest.

Acknowledging top achievers

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It is common practice for the department, schools and media to acknowledge the top achievers. This ordinarily takes the form of publishing the names, results and photographs of the learners concerned. When doing so, one will need to comply with the provisions of POPIA and obtain the consent of the learner, or guardian, as the case may be. This is particularly as a learner’s photograph may constitute special personal information under POPIA which is subject to additional protections.

Where a learner, however, deliberately makes his or her results and personal information publicly available, for example, by publishing it on an open social media platform, the department, schools and media will be able to process such information on this basis.

* Nadine Mather is an attorney at Bowmans.

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