What Does a Data Protection Law Mean for the B2C Relationship? Exploring a possible Life-Cyle.

Data protection is definitely in vogue in Africa. This may be a response to the economic potential of having robust data protection safeguards, and the fear of being left behind by other states that have implemented such laws.

The intricacies involved in establishing a functioning data protection regime, mandate Kenya’s legislators to comprehend the full gamut of parties involved in the data life-cycle, and accruing rights and duties.

What is the data life-cycle? A report by the Centre for International Private Enterprise (CIPE) defines it as the four stages data goes through, from initial collection to disposal. These stages are data collection and processing, storage, transfer, and disposal.

Why is it important? Regulation should adequately modulate the actions of various persons in the data cycle and the processes involved.

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From Fiction to Reality: A Take on AI

Guest Post by Tevin Gitonga

Artificial Intelligence (AI) is the effort to create computers capable of intelligent behavior. It can be classified into two types of AI  “narrow AI”-computer systems that are better than humans in some specific, well-defined field, and “general AI,” systems that can surpass human capabilities in many domains. AI relies on large amounts of data to learn, create patterns that it uses to  perform the actions it is tasked to do. The world is currently experiencing its fourth industrial revolution popularly referred to as Digital Transformation and AI is earmarked as being at the heart of this new era.

Fourth Industrial Revolution: AI

One of AI’s most disruptive features is the automation of tasks that for years have been performed by humans. Mckinsey Global Institute estimates that by 2030 automation, a direct result of AI, will have led to the loss of us many as 30% of the world’s job market. It will displace as many as 350 million jobs and may force as many as 200 million people to change their jobs completely. Such reports highlight the obvious concerns regarding AI. However, it must be noted that such fears are common at the advent of such major shifts to the then status quo. History has repeatedly showed that whilst such disquiet is understandable they are largely unwarranted. A case in point is the rollout of ATMs in the US

Major technological advancements have always resulted in some specific jobs becoming redundant; however, in the process of restructuring the process of production and/or delivery of services, the net job creation has outweighed thelosses.Further, with the freeing up of time in jobs that were initially mundane and are now being carried out by automated machinery and increasingly by AI backed apparatus theoretically people have greater opportunity to pursue careers that are more satisfying and give them a greater sense of meaning and wellbeing. It must also be noted that beyond job creation there are other benefits of AI and automation theseincludes; creating efficiency, boost productivity, reduce costs and improve the quality and range of products that companies can produce in the various sectors that AI is being deployed. Moreover, such technologies improve productivity for those sectors thus yielding greater economic results.

Aligning the present with the Future 

Capacity and skill will be perhaps the biggest contributor in ensuring that there are employment opportunities for the employee of the digital age. In order to develop this capacity and skill, there is a need for an overhaul of the education systems. The current education systems are catered for the second and third industrial revolution and involve reading, writing and arithmetic which targeted the creation of regimented factory workers whose jobs are now at risk due to ever more sophisticated automation and AI. There is need for a dynamic system that teaches how to learn. How to be creative, and the nuances of technology. This may be through our greater understanding of human psychology and being able to understand nuances such as judgment that are not easily created by AI if at all. Education that understands what value add of human experience the market needs and ensuring that they are equipping the students with the tools needed. 

In addition, Lawrence Lessig argues that in order to come up with well-reasoned decisions for society, in relation to technology, there are four factors that should be considered legal frameworks, social norms, the market and nature.  This can only be done when various stakeholders in the technology sectors and others that make up a robust multidisciplinary quality come together.

Multi stakeholders will be able to share their various insights on how to best govern AI and ensure that it is being augmented and does not replace the workforce or cause unnecessary harms. It will also assist in gaining greater awareness of the kind of AI developments that are sensitive to various needs Further, it will assist in coming up with employment laws that safeguard employment and create employment opportunities.

African Perspective 

Africa happens to be in a unique position when it comes to AI and digital transformation as a whole. Since most of the African countries are developing nations, they have a chance of building their societies to be in line with the fourth industrial revolution. This is compared to the already developed countries that have already established systems for example in education that may take more time to align with the developing trends. African countries have the opportunity to change their education systems and tailor them to focus on building competencies and human relational skills that differentiate us from machines but at the same time is in line with digital transformation.   This can help towards keeping African nations relevant in these dynamic times, and satisfy important social indexes such as the creation of meaningful employment opportunities. For example in Kenya a company by the name Samasource hires and trains  young people from Kibera Slums on how to create the Data that is used by big technology Companies to develop their AI systems.

In addition, considering that most African countries have little to no regulations in regard to Digital Transformation and particularly on matters around AI. They have a chance at formulating laws that ensure that AI brings positive impact to the citizens of Africa. Countries like Kenya, have already formed task forces which will look into emerging technologies such as AI and data protection;how best they can be regulated and used to benefit the citizens of their country. These regulations would ensure that AI use in Africa is one that leads to the economic developments of African nations. 

Conclusion 

As digital disruptions continue to occur, economic opportunities and growth in the future will belong to those willing to adapt to the changes that are already here and are only picking up pace.  

The Impact of Technology on Our Society’s Health

Guest post by Patrick Bailey

Governments have done a modest job at ensuring modern technology is applied to making the physical world a safer place. Laws which account for physical safety evolve relatively quickly and pressure companies to apply the latest safety standards to structures, transportation technologies and the like.

Newer technologies such as wearable tech monitor our blood pressure and heart rate, which helps detect early warning signs of a medical emergency. However, the possibility to sell patient health information gathered from wearable tech remains a grave concern amongst citizens. Do governments have the responsibility to address these invasions of privacy? Many citizens would agree they do.

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Fakes and Pirates Online: Is it an Unregulated Space in Kenya?

Kenya continues to witness a steady exponential growth of internet access. The Communications Authority of Kenya (CA), in its Third Quarter Sector Statistics Report for the Financial Year 2017/2018 notes that, “(Kenya’s) total data/Internet subscriptions grew (from the last review) by 8.2 percent, to record 36.1 million subscriptions (up) from 33.3 million recorded during the second quarter of the same financial year.”[1]The report further highlights the total internet subscriptions as standing at 36.1 million subscriptions as at March 2018, growing from the previous 25.7 million in March 2017. The CA attributes the growth in internet subscription to the proliferation of smart phones used to access video on demand, games, music, news and social media sites; which content is protected by copyright.[2]

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IP Assets in the Digital Environment: Three Kenyan Cases

Introduction

This brief considers three instances in which social media has proved an important arena for the creation and dissemination of the value embedded in intellectual property. The first two are decided cases whereas the last is a reported market event. The brief concludes with an overview of the relevance of these cases to the discussion on intellectual property and social media.

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Materiality: A possible hindrance to enforcing misleading representations in social media advertising in Kenya.

Introduction

Influencers endorsing brands and advertisement is the new normal. In their practice, influencers are able to build direct relationships with their key consumers and create a brand loyalty. Thus brands targeting specific consumers, their needs and wants, opt to use them. In advertising, influencers are preferred based on their trust within a niche community, retention of a loyal following and knowledge or experience about what they are advertising.[1]

On 11th March, 2019 notable influencers were endorsing Always products sold in Kenya on #feelthecomfortalways advertisement on Instagram. Influencers were tagged in the advertisement in order to promote the product and to achieve a bigger and specific target audience. On social media, particularly Twitter, consumer complaints on the quality of the Always product have been raised and recorded on #myalwaysexperience, which began in early February 2019.

In light of this on-going case, this article examines misleading representations in influencer led advertisement on social media. A misleading representation occurs when a shared practice or representation misleads through the information it contains, or its deceptive presentation, and causes or is likely to cause the ordinary consumer to take a different decision.[2]  Thus, what statements made by influencers would be termed as misleading representations on social media? How are misleading representations enforced? Materiality in enforcing consumer complaints on misleading representations made by influencers on social media?

Misleading Representations on Social Media

In advertising influencers make often statements, referred to as testimonials, from previous and/or current customers about their experience with a product or service.[3] The testimonials used, such as opinions, value judgments, and subjective assessments on a product, have to be truthful. The consumers should not be misled on any aspect of a product or service which is capable of being objectively assessed in light of generally accepted standards.[4] For instance, a person falsely presents that goods and services have qualities, uses, and benefits they do not have.[5]

Generally, if proven that the Always products in #feelthecomfortalways do not have the said benefits and qualities, and the representations caused an ordinary consumer to make a different decision, the influencers could be liable for misleading representations. In the Competition Act, a person charged with misleading representation can either be fined ten million shillings or five years imprisonment or both.[6]

Materiality in Enforcing Representations on Social Media

In addition to the determining whether the representation is misleading and the effect of the representation on an ordinary consumer, in James Kuria v Attorney General & 3 others eKLR, Mativo J, imposed a materiality standard. Materiality is defined as being of consequence or importance, or pertinent or essential to the matter. The effect of materiality is setting a different test for a misleading representation. The old test was an ordinary consumer. The new test that of an average consumer who is reasonably well informed and reasonably observant and circumspect.

In so doing, in the Always Kenya case, the influencers in #feelthecomfortalways advertisement are merely tagged. The average consumer who is well informed and reasonably observant will know the influencers are making representations on behalf of Always Kenya. Thus the influencers who are tagged would potentially not be liable for misleading statements.

Additionally, the Competition Authority[7] and Inspectors under the Department of Weights and Measures[8] mandated with receiving and investigating misleading representations will be forced to consider materiality.

Conclusion

We have a Court decision imposing the materiality and average consumer test and a standard in the Consumer Protection Act and the Competition Act on misleading representations. The result of this a possible duplicity of standards on misleading representations. Inevitably enforcement mechanisms will prove to be difficult task.  


[1] https://www.forbes.com/sites/theyec/2018/07/30/understanding-influencer-marketing-and-why-it-is-so-effective/#73f9195371a9 accessed on 6th February, 2019.

[2] Consumer Protection Guidelines, 2014.

[3] Consumer Protection Guidelines, 2014.

[4] Code of Advertising Practice and Direct Marketing, 2003.

[5] Section 55, The Competition Act, No 12 of 2010, see also Section 12, Consumer Protection Act No. 46 of 2012.

[6] Section 70, Competition Act, No 12 of 2010.

[7] The Competition Act, No 12 of 2010.

[8] Section 21, Trade Descriptions Act CAP 505.

PROTECT AND COMMERCIALIZE YOUR KNOW-HOW

by Chebet Koros

A tech invention may be protected through a patent, trade secret or know-how. In most cases, this innovation is first kept a secret to gain an advantage over others prior to registration and communication to the public. Amazon’s one-click sale and Google’s algorithm have been built on the companies’ confidential information. These companies’ commercial confidential information has subsequently birthed patent, industrial and trademark rights. The essential component in a successful business is that which acts as a magnetic force pulling in clients from competitors. The company’s unique process, design, business model, database, strategy among others are key components on which a business maintains its competitive advantage. Several companies, outside the tech space, like Coca-Cola and KFC are known to take extreme measures towards protecting their secret recipes resulting in their economic success.

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CIPIT Hosts Novel Moot Court Competition on IT Law in East Africa

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The Winners of the CIPIT Moot Competition, Uganda Christian University.

CIPIT’s bi-annual moot competition aims to be innovative and to attract teams from across East Africa, and the 2018 edition was no exception. This year’s edition was particularly significant being the first moot in Sub-Saharan Africa to focus on Information Technology(IT) Law. The 2018 moot problem addressed the complexities of innovation, privacy and data protection in jurisdictions that operate in a legal vacuum with respect to data privacy. Therefore, participating students were able to interact with the topics of privacy and data protection and grapple with the ambiguities these cutting-edge issues pose in the legal field. This was also an excellent opportunity for CIPIT to highlight the trickle- down effect of innovations to the recurring concerns of data protection, and to nurture the interest of the young generation in IT law and policy.

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Developing a Career in Intellectual Property & IT Law

Guest post by Lucy Wyndham

As the global digital sphere expands, so too do intellectual property infractions. Brand power is more accentuated than ever, leading to greater levels of trademark appropriation. What’s more, new research by Wharton shows that strong intellectual property protection benefits the ‘small guy’. Essentially, protecting new trademarks brings growth for small businesses.

As a result, intellectual property and information technology (IT) legal professionals are in great demand and can expect generous remuneration; Payscale suggests that the potential pay ceiling can reach USD $198,000. Furthermore, as small businesses develop their own systems, having legal assurance embedded will be key to maintaining growth. For a graduate, there is a clear path into the discipline.

Developing and displaying the necessary skills

Communication, problem-solving, determination and natural assertiveness are the core skills that all legal professionals need to possess. For an IP/IT lawyer, it is to your benefit to lay claim to a few other key areas. Firstly, while all lawyers need to stay up to date with law, IP/IT areas are a particularly fast-moving space; accordingly, legal professionals specializing in the field should have a comprehensive knowledge of online resources, and a talent for preempting what big changes will impact a company.  The EU’s General Data Protection Regulation, which came into force in May this year is set to have impacts across Africa and the wider world. According to Thomson Reuters, compliance is high on the agenda; both consultant and in-house lawyers will be busy. When constructing an application, or formalizing your resume, ensure the relevant skills are clearly highlighted.

Understanding the job market

The good news about the IP/IT job market is that it is wide open. As Daily Nation outlined in a report concerning business best practices, there aren’t many intellectual property focused lawyers operating in Kenya, let alone digitally native ones. However, the Kenyan digital startup industry is absolutely booming: startups scooped half of all of Africa’s startup funding in the first 6 months of 2018, totaling nearly USD $50m, according to Business Today. With such a huge expansion in digital businesses, there is a clear market for expert legal advice that will also help to protect the industry, guaranteeing its onward profitability and the reputation of legal experts in the field.

The potential future

IP/IT is a fascinating and rapidly growing area of law. The nature of intellectual property laws are not necessarily set in stone when it comes to digital applications – take, for example, Apistry v Amazon, 2013, in which the case was dismissed in favor of Amazon, with the court finding that the patents involved were ‘abstract ideas’ given their internet-based application. As the world becomes more and more globalized and internet usage continues apace, it’s likely that definitions will shift and previously dismissed claims will become more relevant. The role of the legal professional in the field will only become more valuable and more important.

Moving into intellectual property and information management law is an exciting way to further your career. In Kenya, with businesses booming into the digital age, there are countless opportunities. Seizing is a case of determination and honing the right skills.

THE CIPIT MOOT 2018

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Goodies galore.

The Matter of Mangala & WAP -vs- The Guacamole Republic of Avocado (GRA)

As promised, here is the account of the recently concluded CIPIT ICT Moot. Held every two years, the competition attracts teams across East Africa. It is the only one in the mooting calendar this part of Africa that has information technology and intellectual property as subject matters. This allows competitors to engage with contemporary issues, as was the case in this year’s edition. Data protection has not been legislated extensively in Kenya. The resulting lacuna forces the litigant to think outside the box and try to find viable and practical solutions to technology related problems oft outside the purview of lawyers.

Day One

“There will be winners, and there will be losers…” were the words of the Dean of the Strathmore Law School to end his address to the participating teams during the second biennial CIPIT moot. This author is sure that nothing rung truer in the minds of the eager young faces looking at him.

The Dean of the Strathmore Law School, Dr. Luis Franceschi delivering his address.
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