Ahmore Burger-Smidt
  • Partner
  • Werksmans
South Africa
Ahmore Burger-Smidt

Ahmore Burger-Smidt

  • Partner
  • Werksmans
South Africa

I think I stumbled onto this field in 2006. A very good friend of mine introduced me to the field, and it has that natural connection and link between antitrust and big data, and that's how I got involved in privacy and cyber.

I started off as a competition lawyer, and it was just so easy for me to see the importance of big data to how this world around us evolves. We don't live on paper any more. We live in a virtual world here. We certainly meet one another, we sit together, in a virtual world. And how important is that not – to be able to connect – and technology driving what we do, and we can't live without technology. So that's how I started getting involved in privacy, and understanding and unpacking privacy, and I think that for me was the more intriguing aspect of this.

If we look at the data privacy, the principles that we look at and that we consider and that we apply on a daily basis – they’re universal concepts. It's a whole world that we look at. As data flows across the globe and into cyberspace, the principles apply whether I'm sitting in South Africa or when I'm sitting in the UK, or whether I am in California. And how do I apply those principles? The right to privacy, in terms of the South African constitution, is a fundamental right and a protected right. When I started off my career, I wanted to be a human rights lawyer. I came back to South Africa in 1993, where I worked at the United Nations and [did] a UN fellowship in human rights. I came back because I fundamentally believed in the ‘rainbow nation’. So for me in my career, looking back at it, we are now focused on this beautiful fundamental right of privacy, it pulls me back to who I am.

If I look at highlights, the ability to be part of massive global initiatives around privacy is always a highlight because it's so exciting to work on those big projects. And I think the latest one happens to be one that's very unique to South Africa, but then unique globally and from a European perspective as well: the Steinhoff settlement between the Netherlands and South Africa, because it's a dual listing in terms of the Steinhoff corporate structure. And if we look at how we had to incorporate privacy, both from a GDPR perspective as well as from a POPIA [South African Protection of Personal Information Act] perspective, it was so interesting to be part of this massive group and such an important aspect that you serve a bigger good in terms of what you also consider from a data privacy perspective. So being part of that global settlement from a privacy perspective was absolutely an honour and a privilege

It's an intrinsic motivator for me if I feel good about what I do, so one of the things that I've always believed in then, that I've also rolled out at Werksmans, is e-learning: how do we educate and how do we empower? How do we spread the message of data privacy? So the Werksmans e-learning suite of products is a highlight for me, it's a personal achievement for me. And I think then the biggest privacy achievement to date would be the fact that I've authored the LexisNexis textbook on South Africa. We're busy at the moment with the second edition of the LexisNexis textbook and it will be published by the middle of this year, an in-depth academic analysis and analysis of jurisprudence, in terms of the GDPR system and from a UK perspective, and other jurisdictions as well. Delving into the heart of the concepts and analysing that – I think that for me, is one of the greatest, best things I've ever done in my life. It's an absolute highlight that I can publish a book on data privacy.

So you've got the big matters, and that's always exciting, but there might be some other stuff that you do that constitutes bigger highlights in your life.

There are different levels that you need to look at the biggest challenges. The biggest challenge in society in South Africa is the fact that there's a lack of understanding of what data privacy and cyber law actually entails. In society in general, out in the streets, people think privacy is an absolute right and privacy is not an absolute right. It must be balanced with all the other rights that the Constitution protects. But that's on a limited level. I think a challenge in our society is the general lack of knowledge and in-depth understanding of privacy principles. So, in time, we will be presented with difficult questions to deal with when the regulator is up and running and fully operational, because we're going to see those gremlins pop up. That is a problem. Everyone in South Africa at the moment wants to put themselves forward as a data privacy expert.

And then from a legal perspective, there's a lack of applying the legal principles. No matter whether you like lawyers or whether you don't like lawyers, you need lawyers. The reality is that if you want to practice data privacy, you can't only be a security expert, unfortunately – you need the lawyers. And I think that is sometimes a challenge when people think they can get away with easier solutions without involving lawyers. But in the business community, it seems like it is problematic, that people underestimate the requirement for legal interpretation of what data privacy actually entails.

We will follow the trends from an EU perspective. So currently, if we look at a transfer impact assessment post-Schrems II, that is vital for us to understand, because we interact with the EU and we don't have an adequacy ruling. If we don't understand how to do a transfer impact assessment from a South African perspective, how do we advise our clients engaging with entities within the European jurisdiction, or entities subjected to the European jurisdiction? Also, there is an interplay – we're part of a global economy, so we need to understand what happens globally that will impact on businesses in South Africa.

Another example from the EU – the whole concepts currently around anonymisation and pseudonymisation of information, that's another trend that we are following quite closely to understand how to interpret that, and how to apply that. But then on company-specific issues, if we look at the big trend and looking at social media networks – we can't only look at that from a data privacy perspective, we also need to look at it from a competition law, antitrust perspective, because those two legal streams come together. That is a massive trend that we need to keep our eye on, because we see those developments both through to South Africa as well.

I believe that the data field offers an opportunity for women to actually step forward and fulfil a role from a data privacy/security perspective. Traditionally, if we looked from a security perspective, in my view, it was always very male-dominated.

But privacy in itself afforded a huge group of females to focus on the law and the interpretation of the law, and therein lies massive opportunities for females to actually take the lead. If we look at the LexisNexis textbook, we are two females writing that textbook, which is magnificent. If we look at the information regulator, they are very much balanced in terms of males and females that they've appointed and that are practising in this field and throughout the legal fraternity, and then also from a consulting perspective, we see strong young females establishing themselves in this field in this area.

I think the most important thing for young data professionals and data lawyers is to actually dig in and get your mind into the jurisprudence informing the data privacy principles. Too many people want to read the legislation and think "Now I understand what data privacy is about." But if you don't understand the jurisprudence, and how to interpret these principles – they can look so simple, if you read through the legislation – and understand how the courts have interpreted these principles and applied it, you will never be able to stand on a strong foundation. And that for me is the most important thing. Read, read, read and read. You need to read and if you don't want to work and read, you're going to be left behind.

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