2019 Year in Review – Law and ICT Policy

By
June Okal
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Every year, (2016, 2017, 2018) we look back at the year that has been in terms of progress, big headlines, stories of impact and importance in  the ICT sector with a focus on the legal changes, interesting cases, digital rights violations and policy changes. 

Together with Francis Monyango, here are our top 10 highlights in 2019 for Kenya.

  • We finally got a Data Protection Act! , Alilililili. President Uhuru Kenyatta ended this 10 year journey when he signed the Data Protection Bill from the National Assembly on the morning of 8th of November 2019. 

  • ISP Liability for Copyright – ISPs can now be held liable for Copyright infringing content accessed through their platforms. In September, President Kenyatta signed into law the Copyright (Amendment) Bill, 2019 aimed at addressing royalty issues and illegal content handling.  DSTV has now sued Safaricom and JTL for enabling unlawful transmission of Supersport signals, a case which will help guide this law’s implementation.  
  • Legal responsibility for on demand commerce online platforms? – Following a conversation on social media,  it was alleged that it was possible for children to access alcoholic drinks through on demand e – commerce applications that supply and deliver alcohol. As a platform provider, there is no express law that requires the provider to verify the age of persons making purchases on the app but self regulation for such may be suggested.

 

  • Kenyan banks steal ideas? – Two interesting cases have made headlines on allegations of Corporate IP theft, coincidentally both banks. Here, a banker claims that the Bankers Association has been illegally using his idea on what is now Pesalink for commercial benefit. In this one against Equity Bank, the complainant accuses the bank of using his song in a ‘Wings to Fly’ advertisement since 2013 without paying him.
  • Tech  Giants take on Political ads: Google and Twitter took a stand on political ads while Facebook decided to abstain. Google in its revised policy states that they are limiting election ads audience targeting to: age, gender, and general location (postal code level). They also reiterated that it is against their policies for advertisers to make false claims. Twitter on the other hand banned all paid political adverts completely.
  • Bloggers to start registering for licenses?  – the Kenya Information and Communications (Amendment) Bill, 2019 aka social media bill was tabled in parliament seeking  to regulate the use of social media by requiring bloggers or anyone who uses social media to get clearance or registration from the Communications Authority of Kenya. Those who will register would be obligated to obey a code of conduct that will be prescribed for users online. 
  • Taxation of the Digital Market Place – The Income Tax Act was amended to include income from a digital market place. A digital market place in this is defined as  “a platform that enables direct interactions between buyers and sellers of goods and services through electronic means.” These developments mean that online traders who may not have been paying their fair share of taxes will now have to pay. The Cabinet Secretary for National Treasury is expected to issue regulations outlining mechanisms on the taxation of the digital economy.
  • Digital Lenders on App Stores – Google also revised its Play Store platform policy to ensure the repayment period for mobile loans is not below 60 days. This policy change affected many digital lenders who are based in Kenya with several data protection violations and consumer protection complaints. Developers working on personal loan apps will now need to have data about the loan product in the metadata that allows it to verify the app is not charging astronomical interest, which is common with “payday loans.’

 

  • Judiciary’s ICT Budget Cuts – The National Treasury reduced funds allocated to the Judiciary in this year’s budget. Per the Chief Justice Maraga, the cuts would affect mobile courts, the court of Appeal circuits, and particularly in regard to use of ICTs for public service delivery, the judiciary would have deprioritised commercial WiFi use that supports e-filing, e-payments and plans to automate corruption courts would be halted. This decision was later reversed by the Treasury. 

 

At the World Radiocommunication Conference this year, NCS Communications Secretary Daniel Obam, was reelected as Chairman of the ITU Radiocommunication Advisory Group Chair to advise the  Sector on priorities and strategies adopted in the Sector, and recommend measures to foster cooperation.

  • Hello ICT Policy! 3 years later, the Ministry of ICT finally confirmed the Cabinet’s passing of the ICT Policy whose purpose is to outline the philosophical underpinnings of actions to be taken by legislators. This will certainly direct what focus areas we’ll see coming in to force and priority areas for the government.

With these industry and legislative steps, 2020 promises to be a busy year in terms of implementation of the laws that have been passed this past year as well as ongoing landmark cases that would affect the industry. 

On behalf of the legal tech community, we wish you a prosperous and blessed 2020! 

Also: Thanks to  @maxgauntner for making this photo available freely on  @unsplash

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June Okal
'I speak legalese, understand the tech and hack the law.' June Okal is a legal professional in Technology, Media and Telecommunications Law Practice and Co - Organizer of Nairobi Legal Hackers. Her focus areas are Innovation, Intellectual Property and Internet Governance.

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