March 5, 2022

Challenges, Opportunities, and Strategies for Data Protection and Digital Rights in Africa

Promoting the benefits of a digital economy in Africa is a topic of regular discussion on this Forum. As referenced in the previous post, Africa is seeing a rapid growth of startups led by entrepreneurs who are developing innovative products and solutions for people across the African continent. Similar to Europe and North America, data protection and the securing of digital rights in Africa, the home of approximately 1.4 billion citizens, are persistent challenges. Therefore, it was with great interest to read a Note, as it is formally called by the Stanford Technology Law Review, entitled "Africa in the Information Age: Challenges, Opportunities, and Strategies for Data Protection and Digital Rights."

Authored by Justin Bryant in 2021 while matriculated at Stanford Law School, Mr. Bryant asserts that the "contemporary data protection landscape on the African continent must be tailored to better address the needs of young, vibrant, entrepreneurial societies and resonate with the values therein. Toward this end, this Note issues recommendations aimed at creating effective legal and extralegal enforcement mechanisms. The implementation of these recommendations stands to position the continent well in the years to come and amplify the voices of African nations in the evolving global dialogue."

Providing case studies from six countries (Angola, Ghana, Mauritius, Nigeria, South Africa, and Tunisia), Mr. Bryant notes that "the divergent development of data protection laws across the continent while simultaneously underscoring how common predominant influences—including past and present vestiges of colonialism— have left Africa short of effectiveness on this front."

General Data Protection Regulation (GDPR) is the European law on data protection and privacy in the European Union (EU) and the European Economic Area (EEA). And, as Mr. Bryant explains, GDPR "has quickly become the global standard for data protection law since coming into effect in 2018." While substantively different than GDPR, the state of California followed the EU's move in passing data protection legislation with the California Consumer Privacy Act or CCPA. Many people worldwide are watching whether GDPR or CCPA will become the standard regulatory framework for other nations. Experts whom I have spoken with, suggest GDPR, as a law that binds multiple nations, may be the prevailing model.

Could a data protection and privacy policy similar Europe's or California's be adopted in Africa? Mr. Bryant says while "The Information Age presents endless possibilities for African countries ... they will not be able to take full advantage of these possibilities by governing the digital space with laws that do not meet their particular contexts, challenges, and circumstances. As global standards form in this arena, African nations should be contributors, not simply adopters."

With respect to compliance challenges in Africa, the Note insightfully points out that "While country-level legislation on data protection is being enacted in Africa, it is important to remember that most African countries still do not have comprehensive legal frameworks for data protection, and those that do face considerable obstacles in enforcement." Furthermore, "As major gaps exist in Africa's data privacy landscape, challenges will persist for years to come."

Mr. Bryant's Note covers other key topics such as the transplant effect and consequences of the status quo, creating community-based models for norm diffusion, and a thoughtful discussion on threats posed by international actors in Africa's digital space. But his conclusion, in part, is something stakeholders in Africa should pay particular attention to:
It is long past time for African stakeholders to have productive discussions to identify their priorities in internet governance with an eye towards the continent's youth and desired position in the decades to come. There must be a diversity of voices and perspectives at the table so lawmakers can comprehensively understand the needs of various constituencies. There must be honesty and transparency surrounding the relationship between the government and its citizens and clarity surrounding boundaries set in constitutions. Once legislation is ratified, African leaders should see that implementation follows as soon as possible thereafter, and aim to stick to predetermined timelines to create confidence in these laws.
As the mentioned in the previous blog post, Africa, with a youthful and increasingly educated population, will see a dramatic rise in new tech startups for years to come. The success of these startups, however, will depend on fair, transparent, and consistent legal regulations across a wide-array of areas including data protection and digital rights. Consumers and enterprises alike in the West have enjoyed the benefits of the innovative products and services created since the dawn of the internet age of the 1990s. However, there is continuing abuse by some tech companies that are infringing on the privacy of individuals. It is my hope that African stakeholders learn these lessons when creating and implementing policies to their unique constituencies.

Do you agree with Mr. Bryant's findings? What strategies do you recommend for how to improve the data protection landscape in Africa and protecting the digital rights for all Africans?

Aaron Rose is a board member, corporate advisor, and co-founder of great companies. He also serves as the editor of GT Perspectives, an online forum focused on turning perspective into opportunity.

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