Doctrinal Research

This is traditionally the sole methodology of legal research. It primarily focuses on what the law is, i.e. de lege lata as opposed to what the law ought to be, i.e. de lege ferenda. Under doctrinal methodology a researcher’s main goal is to locate, collect the law (legislation or case law) and apply it to a specific set of material facts in view of resolving a legal problem. This is because the major assumption of doctrinal research is that the character of legal scholarship is derived from law itself.²³⁰ With this limitation, it is imperative to note that beyond an existing legal rule, doctrinal methodology is incapable of being used for legal analysis. To recapitulate, the main agenda of the present research is law reform. The research questions stated in 1.2.2 of this study have been formulated towards that broad agenda. In this context therefore, doctrinal research has limited application to the present study. The method is only applicable where interpretation of existing laws or at least a Bill is required. To be sure, the second research question identified in 1.2.2 requires to be approached by doctrinal research methodology. Similarly doctrinal research is used in evaluating statutory and case law in specific national jurisdictions referred in this study.

227 Mcgrath, J.E., ‘Methodology Matters: Doing Research in the Behavioural and Social Sciences’, in R. M. Baecker et al., (eds), Readings in Human-Computer Interaction: Toward the Year 2000, Morgan Kaufmann Publishers, 1995, p.

154.

228 Ibid.

229 Ibid.

230 Chui, W.H and McConville, M (eds)., Research Methods for Law, Edinburgh University Press, 2010, p.4

53 1.2.4.2 Empirical Legal Research

Owing to limitations of the doctrinal exposition described in 1.2.4.1 and in order to overcome them, the present research engaged empirical legal research (sometimes known loosely as non-doctrinal or socio-legal or interdisciplinary research) as a supplement.²³¹ This mixed approach is tandem to what academic lawyers such as Baldwin and Davis argue, ‘it is important to note that empirical legal scholarship is complementary to doctrinal research and both methodologies can be used simultaneously to examine legal issues.²³²²³³As to what makes research empirical, Epstein and King state:-

‘...is that it is based on observations of the world, in other words, data, which is just a term for facts about the world. These facts may be historical or contemporary, or based on legislation or case law, the results of interviews or surveys, or the outcomes of secondary archival research or primary data collection. Data can be precise or vague, relatively certain or uncertain, directly observed or indirect proxies, and they can be anthropological, interpretive, sociological, economic, legal, political, biological, physical, or natural. As long as the facts have something to do with the world, they are data, and as long as research involves data that is observed or desired, it is empirical.’²³⁴

Since non-doctrinal legal research uses empirical data, it provides vital insights into the law in context, i.e. how the law works in the real world.²³⁵ In other words, non-doctrinal research deals

231 In considering further limitations of doctrinal research, Siems poses a question, ‘Why do we need other disciplines in order to answer these specific or general questions? Why is it not enough to do traditional legal research, in particular doctrinal research?’ He then answers himself, ‘The main reason is that traditional methods are often regarded as useful but too narrow. For instance, doctrinarism has been accused of being “rigid, dogmatic, formalistic and close-minded; of encouraging “intellectual tunnel-vision” through an unhealthy preoccupation with technicalities; of placing “an intellectual strait-jacket” and of impoverish[ing] the questioning spirit of both law student and teacher’, See, Siems, M.M., ‘The Taxonomy of Interdisciplinary Legal Research: Finding the Way out of the Desert’, Journal of Commonwealth Law and Legal Education, 2009, Vol.7, No.1, pp.5-17, at p. 6.

232 Baldwin, J and Davis, G., ‘Empirical Research in Law’ in P.Cane and M. Tushnet (eds), The Oxford Handbook of Legal Studies, Oxford University Press, 2003, p.881 cited in Chui, W.H and McConville, M (eds)., Research Methods for Law, Edinburgh University Press, 2010, p.6.

233 For more discussion about advantages and disadvantages of using empirical methodologies in legal research see, Burns, K and Hutchinson, T., The Impact of “Empirical Facts” on Legal Scholarship and Legal Research Training’, the Law Teacher, 2009, Vol.43, No.2, pp.166-168.

234 Epstein, L and King, G., ‘Empirical Research and the Goals of Legal Scholarship: The Rules of Inference’

University of Chicago Law Review, 2002, Vol.69, No.1, pp.1-133, at pp.2-3 cited in Dobinson, I and Johns, F.,

‘Qualitative Legal Research’ in W.H Chui and M. McConville (eds)., Research Methods for Law, Edinburgh University Press, 2010, p.18.

235 See e.g., Razak, A.A., ‘Understanding Legal Research’, p.21, Department of Management and Marketing Faculty of Economics and Management, University Putra Malaysia,

http://econ.upm.edu.my/researchbulletin/artikel/Vol%204%20March%202009/19-24%20Adilah.pdf,

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with the externalities affecting the operation of law. As a result, empirical legal research is valuable in revealing and explaining the practices and procedures of legal, regulatory, redress and dispute resolution systems and the impact of legal phenomena on a range of social institutions, business and citizens.²³⁶ As noted, this research has a law reformist agenda. Because of this, it was imperative that empirical research be invoked.

Sources of data for this research were mainly documents and interviews. Documents constituted the largest source while interviews were supplementary. Concomitantly, the collection, review and analysis of documents such as legislation, Bills, case law, decisions of quasi-judicial bodies, policies, hansards, reports, treaties and conventions, travaux préparatoires, journal articles, commentaries, reference books, newspapers, and magazines was central to the methodology of this study. However due to limitations affecting the currency, accessibility as well as reliability of some documents, a decision was made to engage unrepresentative, non-random sampling interviews to a limited scale. It must be underlined that while interviews were not the main source of data to the present thesis they were important and useful in supplementing the documentary source.

In order to gain access to documentary source, libraries, bookstores and Internet sources were highly used. The researcher’s membership to the State and University Library Bremen (Staats- und Universitätsbibliothek Bremen) was vital to access data for this study. Moreover, being a member of freelance researchers’ team to the Law, Science Technology & Society Studies (LSTS) at the Vrije Universiteit Brussel since 2009, the researcher has had access to this University library and more importantly its online resources. The researcher had also access to the University of Derby’s Digital Library. This library by far provided links to numerous databases such as Westlaw, Lexis Library (formerly known as LexisNexis), HeinOnline, Wiley Online Library, Taylor and Francis, SpringerLink journal collection, and SciVerse ScienceDirect. The researcher also accessed freely the African Journals Online, AJOL, (http://www.ajol.info/).²³⁷ The main goal of AJOL is to promote access to African research. This database helped a great deal in conducting literature review on privacy issues in African context. In South Africa, the researcher purchased temporary membership to the University of South Africa’s (UNISA) Library from 28 June 2011 to 29 June 2011. He was similarly able to access freely online materials from UNISA Institutional last visited 25/09/2011.

236 Ibid.

237 The African Journals Online (AJOL) is the world’s largest and pre-eminent of peer-reviewed, African-published scholarly journals. AJOL is a Non-Profit Organisation based in South Africa, see, http://www.ajol.info/). Most articles in AJOL are freely accessible and downloadable in pdf. format.

55

Repository via uir.unisa.ac.za. Apart from access to UNISA Library, the researcher purchased books and journal articles covering privacy and human rights issues from the University of Pretoria Bookstore. Important texts purchased there include Neethling’s Law of Personality, Second Edition; Neethling-Potgieter-Visser Law of Delict, Sixth Edition; Information and Communications Technology Law (Dana van der Merwe, et al); The Law of Delict in South Africa (Max Loubser and Rob Midgley (eds)) and the Rise and Fall of Apartheid (David Welsh).

It deserves mention that the researcher received free of charge the Commentary on Promotion of Access to Information Act from one of its co-authors, Professor Iain Currie when he visited him for interview at the University of Witwatersrand (WITS). He equally received journal articles from Professor Anneliese Roos at UNISA. Moreover, in South Africa, the researcher gained free access to the South African Law Reform Commission’s website (//www.justice.gov.za/salrc/) where he was able to retrieve the Issue Paper, Discussion Paper and Report on Privacy and Data Protection in South Africa. These documents were the basis of preparation of the Protection of Personal Information Bill (B9-2009). To keep abreast with the discussions and deliberations on this Bill, the researcher requested and was granted free subscription to the South African Parliamentary Monitoring Group’s (PMG) website (http://www.pmg.org.za/). PGM has been monitoring South African Parliamentary Committees since 1996 to date. With such access, the researcher was able to follow closely all the proceedings and deliberations of the Parliamentary Portfolio Committee on Justice and Constitutional Development with regard to the Protection of Personal Information Bill after it was introduced in the South African Parliament on 25 August 2009.

The researcher obtained most information in Mauritius from the Data Protection Office at its current office located on the 4th Floor, Emmanuel Anquetil Building, along Corner Sir Virgil Naz & Sir William Newton Streets, in Port Louis. Many resources were also accessed from the Data Protection Office’s website. Such resources are freely accessible to anybody; anywhere, provided one has Internet connection. They include for example, the Data Protection Act, 2004, its amendments and all regulations made under it. Other important documents are industry codes of good practices, comprehensive list of data controllers, decisions of the Data Protection Commissioner over complaints lodged in her office, various forms to be used in lodging complaints, registering data controllers, etc as well as numerous presentations made by the Data Protection Commissioner to various public and private sector organisations over the operation of the Act. While in Mauritius, the researcher also gained access to the Supreme Court of

56

Mauritius Library with the aid of his research clearance. He was also given a free subscription to the Court’s online library. With such access, various legal materials were retrieved.

Similarly, the researcher gained access to various documents from the Tanzania Communication Regulatory Authority (TCRA). He also accessed freely TCRA’s website (http://www.tcra.go.tz/) and retrieved legislation, regulations, reports, notices to the general public, etc. Apart from that, the researcher gained access to the Law Reform Commission of Tanzania’s website (http://www.lrct.go.tz/). With its limitation of materials to the present thesis, the researcher was able to retrieve only a Position Paper on Electronic Commerce law which very remotely addresses privacy issues. Other resource materials were limitedly obtained from the Library of the High Court of Tanzania, Commercial Division. The researcher also accessed a report for conciliation cases (1997-2007) from the Media Council of Tanzania. Some of these cases are relevant to privacy issues.

Search engines were also instrumental to the data collection in the nature of documents. The most common tools for search of resources were the Google (http://www.google.com/) and Yahoo (http://www.yahoo.com/). Similarly, the researcher made significant use of Lexadin World Law Guide database to look for data privacy legislation and other laws regulating privacy across Africa. Europa databases²³⁸ played a useful role in obtaining official documents, legislation and treaties, ECJ decisions, policy papers, working papers, communications, etc for European Union (EU) institutions. Equally important were the Asia Pacific Economic-Cooperation (APEC) databases(http://www.apeccp.org.tw/) which provided access to similar documents as Europa databases. The researcher put much interest on the APEC Privacy Framework. It is important to note that the list of sources of documents provided here (accessed electronically or in print) is not comprehensive. It only serves as the main sources.

The electronic sources of documents relied in this study have limitations. The first limitation is the determination of authority and authorship. With exception of official websites, materials accessed from either personal sites or blogs presented a great deal of difficulties in identifying the authority as well as authorship. In order to deal with such problems, the researcher scrutinised the sites as well as the materials using criteria set out in figure 1 of this thesis. In event the site or materials accessed from there failed to pass such criteria they were either discarded or read for

238 See the link at http://europa.eu/documentation/order-publications/databases-alphabetical/index_en.htm.

57

information only. However such materials could not be relied as authoritative sources worth of being cited in the study.

The second limitation relates to the currency of information. It is important to note that not all old information is bad. Sometimes we need old information in order to trace the development of law or a particular phenomenon. Despite that, it is difficult sometimes to find the date of publication of information on materials posted on the Internet. This makes it even harder to tell the oldness or newness of the information. To deal with this problem, efforts were made to look for the date of publication of information and when that was last revised. When this was lacking, then a comparison of the source with other information already at hand was made to determine the currency of the information.²³⁹ Commentators suggest that in order to deal with the problem of currency, the date when the website carrying the information was last revised should be looked at.²⁴⁰ It is arguable that sometimes the date of the last revision of the website does not correspond with the information it contains. For example, although the Lexadin World Law Guide bears the 1 January 2011 as the last update for legislation in Seychelles, the website does not list Data Protection Act 2003²⁴¹²⁴² as one of the country’s legislation. Faced with a situation like this, the researcher made alternative use of search engines especially Google.com to get some clues about the information searched. Again, in order to indicate the limitation of information the researcher always recorded the date on which he reviewed information from an Internet source.²⁴³ This was important to include when citing to the Internet resources because of their transitory nature.²⁴⁴

There is also the problem of objectivity of the sources. This, of course, depends on the nature of topics and the main agenda of the sponsors of websites. For example, issues of politics, culture or religion attract a lot of biasness because of diversities of ideas, opinion, etc. Sometimes it may only be the sponsor of a website’s goals to perpetuate his or her agendas. With this in mind, and especially privacy issues concern as well people’s cultures, materials accessed were objectively evaluated using criteria set in figure 1.

239 Karanja, S.K., ‘Schengen Information System and Border Control Co-Operation: A Transparency and Proportionality Evaluation’, PhD Thesis, Faculty of Law, University of Oslo, 2006, p.18.

240 Ibid.

241 Act No. 9 of 2003, the Seychelles comprehensive legislation regulating use of automatically processed information relating to individuals and provision of services in respect of such information.

242See, http://www.ilo.org/dyn/natlex/country_profiles.nationalLaw?p_lang=en&p_country=SYC, last visited 27/09/2011.

243 Watson, C. A., ‘Internet Research Methodology’, 2004 Presentations, Paper 8, p.7,

http://digitalcommons.law.uga.edu/speeches/8; See also http://works.bepress.com/carol_watson/4, last visited 26/09/2011.

244 Ibid.

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Apart from the above limitations, it is also important to note that some electronic materials are copyrighted and require a subscription. The subscription usually requires one to pay for user licence or subscribe in a manner that requires payment of licensing fee. Faced with this situation, the researcher had first to consider the relevancy of the material to his study. This was done through reading the abstracts, preface of the materials or summary part of the source. Second, the material was checked from all the libraries and electronic sources the researcher had access to. If this was not found, then the researcher borrowed the materials through interchange library arrangements of those libraries he had membership. In extreme cases, the researcher had either to buy the material from bookstores or purchase the user licence to access the material online.

However, despite its limitations, the Internet provided an important source of the materials used in this thesis. To ensure that such information was accurate, authentic, authoritative, objective, relevant and current, criteria set out in figure 1 were used to evaluate such information.

Nonetheless, materials in print format accessed offline (non-electronic libraries and bookstores) were equally important in providing useful information required in the analyses of this study.

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Figure 1: Assessment Criteria for the Quality of Internet Sources

Criteria Description

Authority

o Credentials of the author or website o Author’s educational background o Past writing and experience in the field o Author’s institutional affiliation not evident on the page you enter the site.

o If you cannot determine the author or publisher of a site, examine the structure of the web address. Many web addresses are readily identifiable by their extensions. For example: gov = government, edu = educational institution, org = nonprofit organization, com = commercial organization. Similarly a web address with a tilde (~) is primary evidence that the web page is an unofficial, unauthorized or personal page.

Accuracy

o Do you recognize the name of the publisher or author? If not, does the publisher provide verifiable evidence of its competency?

o Are there citations to other published works, a corporate profile, and information about editorial standards?

o If you have never heard of the author, does she supply an autobiography or curriculum vita containing verifiable evidence of her authority on the subject?

o Examine the names of individuals or groups responsible for

information supplied by the site. A credits and conditions statement might offer this information.

o Does it provide new/add to/substantiate information at hand?

o Is the material primary or secondary?

o Audience

o Is the work reviewed or referred?

o Able to verify through traditional edited print or electronic source?

o Are there errors which may affect accuracy or information?

Source: adopted partly from Karanja²⁴⁵ and Watson.²⁴⁶

245 Karanja, p.17, note 239, supra.

246 Watson, note 243, supra.

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Interviews for this research were carried out in Mauritius, South Africa and Tanzania between 28 June and 16 September, 2011. These interviews were unrepresentative and non-random. Three categories of interviewees were involved: key informants (usually academics, researchers, national officials responsible for the law reform commissions, data privacy offices, commissions for human rights, attorney general’s offices, judiciary and legislators), data controllers( public and private organisations as well as individuals), and data subjects. Initially a total number of 15 respondents in each country case study reflecting the above categories were planned. However, in the course of field research and especially after interviewing key informants, adjustments were made to the plan.

In South Africa, key informants interviewed were Professor Anneliese Roos at UNISA and Professor Iain Currie at WITS. The researcher has been in contact with Roos since September 2008 by email communications. This was the time he was developing literature review of a project proposal of this thesis. So far the researcher is aware that Roos is the first to carry out scientific research on data privacy protection in Africa. Although her thesis is purely theoretical,

‘The Law of Data (Privacy) Protection: A Comparative and Theoretical Study’,²⁴⁷ making

‘The Law of Data (Privacy) Protection: A Comparative and Theoretical Study’,²⁴⁷ making