Does South Africa's Proposed State Ownership of Data Make Any Sense?

Abstract

This paper interrogates the proposed state ownership of data by South Africa’s Draft National Cloud and Data Policy 2021 and argues that the quest for state ownership is evidence of South Africa's policy preference for the state custodianship of critical natural resources. The paper suggests that a preferred reading of the proposed state ownership is the affirmation of a regulatory space to address issues related to the digital economy. This paper further suggests that regulatory oversight is inconsistent with the proposed state ownership because of the multi-dimensional nature of data and the fact that data is constitutional property. Rather than seek state ownership of data, the paper examines how to strike a delicate balance between the rights of citizens over data, such as privacy and the data use by companies who are recognized by South African Law to be entitled to some protection of privacy; intellectual property rights and confidential information. The paper sketches a framework of the balance in data governance in South Africa by reviewing jurisprudence that enables South Africa assert appropriate regulatory oversight through laws policies and institutions that enhance her digital economy.