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.
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.”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.
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.
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
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. 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. 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.
For instance, a person falsely presents that goods and services have qualities,
uses, and benefits they do not have.
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.
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
Additionally, the Competition Authority and
Inspectors under the Department of Weights and Measures mandated with receiving and investigating
misleading representations will be forced to consider materiality.
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.
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.
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.
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 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.
“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.
CIPIT held its biennial moot on 11th and 12th of October 2018. In total there were 13 teams in attendance, with about half of the teams hailing from Uganda. In the coming weeks, the CIPIT team will provide a full play by play account of events. Before that however, we would like to acknowledge one of the teams that participated.
The University of Nairobi Team comprising of the Kanyangi twins (so any confusion in the above image is regretted but understandable) and Jackline Sang wrote to us, grateful for the wonderful experience they had during the moot. Truth be told, it is the CIPIT team that is in gratitude for their attendance and their thoughtful letter. Here is their account of the moot, viva voce…
“It was a great privilege to participate in the recently concluded CIPIT 2018 moot competition. From the very onset it was exciting to engage with teams from universities around the country and Uganda. The moot concerned the right to privacy and data protection. Of specific emphasis was the disclosure of health data to third parties and the use of such information to peddle advertisements on the accounts of Wika virus victims.
The freedom of association has traditionally been defined as the right to be with other people for a legal reason, cause or purpose, without interference. However, with the advent of modern technology, today’s emergent associations differ in important ways from traditional political and social organizations.
Recent global events particularly those associated with the Arab Spring form prime examples of the need to examine and analyze the legal protections afforded to associations in the digital age and whether such protections are sufficient in the wake of emerging threats.
Thus, an analysis of the commonalities and the differing aspects of the contrasting viewpoints of the subject right as well as the impacts of this is well justified in light of the changing context within which the right is exercised and indeed with a view to building a wholesome definition having considered all relevant factors.
TRADITIONAL RIGHT VIS-À-VIS DIGITAL RIGHT
Freedom of association has commonly been associated with the notions of physical meetings and geographical proximity. However, advances in modern communication technology have greatly shifted the context of this right and led to a number of differing aspects with its traditional understanding. The prime difference consists in the non-requirement of geographical proximity. Previously, participation of one’s associational freedom often meant attendance of in person meetings. Conversely, in the present day, one can participate in the activities of an association without the need for physical attendance or geographical proximity due to the relatively inexpensive nature of internet connection. Global events ranging from the political uprisings that swept across the Arab world to the Occupy Wall Street Movement have highlighted the use of digital technology in the exercise of the subject right.
Another key differing factor is the platform on which the right is exercised. In its traditional understanding, the right is often exercised in public spaces such as city squares whereas the digital right extends to digital platforms such as discussion forums and chat rooms. This view was supported by the APC which stated that the right should be construed to include any space where people can meet, including online spaces.
A logical import from the differences highlighted is the central role of modern technology as a conduit to the exercise of the digital right. This view is reiterated by the 2012 report of the former Special Rapporteur where he called upon States “to recognize that the rights to freedom of peaceful assembly and of association can be exercised through new technologies, including through the Internet”. This view was also highlighted by the Human Rights Council in its Resolution 24/5 in which it:
“Reiterated the important role of new information and communications technologies in enabling and facilitating the enjoyment of the rights to freedom of peaceful assembly and of association…”
However, these differences do not constitute a comprehensive redefinition because of the commonalities shared such as the similar nature of the associations in both conceptions. As per the ‘Guidelines on Freedom of Association’ an association is “an organized, independent, not-for-profit body with an institutional structure based on the voluntary grouping of persons with a common purpose.” Online associations fulfill each of these requirements therefore enjoying protection even in the traditional understanding.
DEFINITION AND RELATION TO ASSEMBLY
In view of the differences as well as the commonalities of the contrasting interpretations of the subject right one can reasonably deduce that the digital right can be defined as the right to voluntarily join with others through collective action based on a common purpose through the use of modern communication technology without interference.
Perhaps an interpretational challenge in defining the subject right also owes to its confusion with the related freedom of assembly. Freedom of assembly secures the right of people to meet for any purpose connected with government whereas associational freedom protects the activities and composition of such meetings.
Digital technology has transformed the ways in which civic and political associations are formed and operate. Political and civic “work” in society is increasingly performed not by traditionally organized and well-defined associations but by decentralized networks of individuals. As such, online association has opened the door for a more effective advocacy of Human Rights issues which may be dangerous in authoritarian states and for the faster aggregation of resources for community development.
However, the same features of modern communications technology that enhance associational freedom also crucially enhance the threat posed by relational surveillance. Relational surveillance can loosely be defined as surveillance that makes extensive use of digital communications in order to determine the associative groups to which an individual belongs. Comprehensive surveillance has the unfortunate propensity to cause exploitation of vulnerable groupings in society. Indeed surveillance also highlights the occasionally involuntary nature of online association since it uncovers exploratory activities such as inquiries or admission into social media groups which could mark an individual as a “member” of an association before express consent has been made. Additionally, the networking tool of the internet is useful not only to legitimate civic groups but also to criminal and terrorist groups as they can also benefit from the pseudonymity of digital association.
Lastly, the central role of data in modern communications technology and continuous data collection often leads to the threat of profiling. It is no secret that platform providers retain consumer data often using it for targeted advertising purposes. However, the emergent use of data as a value tool whereby data is sold to advertisers and other firms has led to widespread privacy concerns highlighted best by the Cambridge Analytica scandal.
Given that the Computer Misuse and Cybercrimes Act’s chief focus is with regard to the content of the data rather than the collection and use of data and the relative lack of comprehensive data protection legislation outside the Constitution, it would seem that the local laws are ill equipped to deal with the issue of surveillance. Therefore, there is need for legislation to regulate and provide oversight on;
circumstances under which platform providers can collect and use data,
circumstances under which platform providers can share such data with government agencies and other 3rd parties.
Although modern communications technology has greatly enhanced associational freedom for many informal associations, it has also facilitated the emergence of new threats such as that of surveillance. This expansion of the scope of the subject right has meant that current legislation is insufficient in the wake of new threats. Therefore, it is imperative to review and update relevant legislation in order to comprehensively address these concerns.