March 25, 2022 - 5 minutes read

Data Commissioner calls for public comments on draft Alternative Dispute Resolution framework

By Amrit Labhuram

The Office of the Data Protection Commissioner (ODPC) has called for comments from the public on its first draft Alternative Dispute Resolution (ADR) framework for data protection disputes. 

The ADR, in the context of the framework, is a voluntary process of settling data protection disputes arising under the Data Protection Act, 2019, between individual complainants and respondent organisations through conciliation, mediation, negotiation, or arbitration. 

The framework justifies the use of ADR on the basis that it is favoured over litigation and administrative action, as it grants parties to the dispute autonomy to achieve settlement on their own terms. The framework has been benchmarked against the experiences of various data protection dispute resolutions from across the globe.

It is important to note that parties to a data dispute are not bound to use the ODPC framework and are free to pursue ADR processes outside the framework at their own costs. 

Below is a general overview of the salient segments of the draft ODPC ADR framework.

Framework objectives: 

The ADR framework has been developed to: 

  1. Provide parties an opportunity for amicable resolution of their data protection disputes as an alternative to administrative action and litigation.
  2. Provide the structures, processes and safeguards to support ADR of data disputes in Kenya.
  3. Outline basic rules of conduct of parties and facilitators and related issues for effective facilitated ADR of data protection disputes.

Facilitated ADR

Under the framework, a complainant or respondent to a data dispute may request the Data Commissioner to facilitate the ADR process. The ODPC shall appoint a facilitator, who shall, where feasible initiate and encourage negotiations and conciliation towards amicable settlement of the Complaint. 

However, facilitated ADR is only possible as long as the ODPC has not issued an enforcement notice. An enforcement notice is issued when the ODPC has determined that an entity is non-compliant with Kenya’s data protection legal framework. The notice shall contain the specific measures that need to be taken to remedy or eliminate the situation causing the non-compliance.

In addition, the framework stipulates that the ODPC appointed facilitator(s) shall disclose any conflict of interest existing before the commencement of the ADR proceedings, ensuring the ADR process is overseen by an independent and impartial facilitator free from bias.

Commencing data dispute ADR under the framework
The framework stipulates ADR proceedings shall commence once parties to the dispute receive written communication by the Data Commissioner appointing an appropriate facilitator. In a bid to ensure expeditious resolution of disputes, the framework provides a ninety (90) day time frame for the resolution of data dispute proceedings, although the period may be extended via an agreement of the parties.

Unsuitable data disputes under the framework: 

The following disputes are deemed not to be suitable for resolution under the draft ADR framework:

  1. Settlement of the dispute would be contrary to the Constitution of Kenya, the Data Protection Act, or any other law;
  2. The matter in dispute regards technical interpretation of the law;
  3. It is in the public interest to have judicial clarification of the issue;
  4. Pursuit of the matter through administrative action or the court system would promote compliance;
  5. One party is unwilling to engage in the ADR process;
  6. Where the Data Commissioner has already issued an Enforcement Notice.

In their current form, some of the unsuitable disputes are ambiguous and it is anticipated that the final rendition of the framework will refine the ambiguous disputes. 

Termination of ADR proceedings 

ADR proceedings under the framework may be terminated for the following reasons:

  1. Where either party opts to terminate the proceedings or all parties mutually agree to terminate the proceedings;
  2. If a party fails to honour three consecutive ADR meeting invitations without any justifiable cause;
  3. Where a party fails to carry out a reasonable request made by the facilitator(s) without a valid justification; and 
  4. Where the ninety (90) day timeline required to resolve disputes has lapsed and the party that made the ADR application has not sought an extension of time.

However, a terminated ADR proceeding may be re-admitted under the framework upon application of either party, after having obtained the consent of the other party to the dispute.

ADR agreement details 

Once the parties have reached an agreement for the resolution of the data disputes, the issues agreed upon shall be set out in a written agreement. The written agreement entered into under the framework shall be deemed to be a determination of the Data Commissioner, and shall be enforceable as such.

Should either party to the proceedings violate the terms of the ADR agreement, the other party may apply to Court for enforcement of such agreement.

The ADR agreement must include the following details:

  1. Background of the dispute and the issues in contention;
  2. Processes and specific exercises undertaken during the ADR proceedings;
  3. Both agreed and non-agreed issues;
  4. Terms of settlement;
  5. Taxes payable, where applicable, and justifications thereto;
  6. Undertakings given by each party, if any;
  7. Agreed payment plan, where applicable; and
  8. Award of costs, if any.

Crucially, the ADR agreement shall be binding to all the parties to the dispute and shall be deemed to be a full and final settlement of the dispute. In addition, the contents of the ADR agreement shall be confidential and entered into on a without prejudice basis;

Where there is no agreement between the parties after an ADR process, the matter shall be referred back to the Data Commissioner by the facilitator.

Following the collation and consideration of public comments on the draft ADR framework, it is highly anticipated that the framework shall undergo significant amendments. Stakeholders interested in submitting their written memorandum have until 5th April, 2022, to make their submissions.The full ADR framework is accessible: https://www.odpc.go.ke/draft-alternative-dispute-resolution-framework-adr/#

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