August 26, 2022 - 5 minutes read

Harmonising Africa’s regulatory for the realisation of an African data economy

By Amrit Labhuram

In Part III of our series “Dissecting the African Union Data Policy Framework”, we will cover the key considerations in aligning a country’s regulatory context with the requirements of an African data economy. 

A trusted data environment requires users to trust the entire political and economic system underpinning the data economy. Fundamental aspects of this kind of system include:

  • Safeguarding basic human rights through the rule of law; 
  • Institutional arrangements and regulations that are established through consultative and transparent processes; and 
  • Institutions responsible for overseeing the use of data, as well as public and private data producers, are accountable for the use of public and personal data.

The continental challenge is to ensure that all countries have all the necessary aspects and that they are appropriately adapted to rapidly evolving data technological and economic challenges. 

The AU Data Policy Framework sets out all the essential components of legitimate and trustworthy data systems to enable benchmarking by countries as to whether they have some or all of the components fully in place.

The regulation in data economies requires future-facing agile regulatory decisions in the face of uncertainty. Thus, regulators require both the mandate and the confidence to regulate proactively. Complex adaptive regulation responds not only to the challenges of rapid change and uncertainty, but also the complexity of data ecosystems characterised by multi-factor dynamics.

In order to ensure equitable and safe access to data for innovation and competition, member states must establish a unified legal approach that is clear, unambiguous and offers protection and obligations across the continent.

Where necessary, existing legal instruments should be revisited regularly to ensure that they are not in conflict with one another and that they offer complementary levels of protection and obligations within member states. In accordance with their legal systems, member states should support the streamlining of these policies at the subnational level to facilitate proper implementation at all economic levels. Intellectual property laws should be revised to clarify that they do not generally impede the flow of data or data protection. 

The AU Data Policy Framework identifies the following action points for AU member states to implement in a bid to align their regulatory environment with the desired continental standard:

  • Contracts that purport to give up digital rights, personal data protection and that inhibit competition should, as a general rule, be unenforceable. This can be articulated in data protection and competition regulation, which can also consider on a case by case basis whether the pro-competitive effects of such contracts outweigh the anticompetitive effects.
  • National law reform commissions or similar expert legal institutions should investigate and consider how to harmonise different branches of laws, regulatory regimes and supervisory authorities that deal with data.
  • Member States should support the update or adoption of competition law frameworks and regulations that consider the challenges of analysing competition issues, designing remedies and enforcing their powers to safeguard competition in data-driven markets, as well as building the capacity of competition regulators to implement these rules.
  • Intellectual property laws should be amended to provide:
    • that if copyright applies to databases and compilations of data at all, it shall apply only to the work of human authors that exhibit originality/creativity and that the copyright extends only to the original selection and arrangement of data in a database or compilation and not to the data itself;
    • that any copyright or other intellectual property right, including trade secrets that enables control of data, does not apply to personal data; 
    • that any copyright or other intellectual property right, including trade secrets that enables control of data, is limited by the provisions of competition regulation and alternative rights that offer protection to local innovations not envisaged in current frameworks; 
    • adaptations to existing IP Rights regimes to leverage next frontier technologies, such as enabling AI to use data.

The realisation of an African data driven economy is premised on the collective commitment of all African countries towards a continentally applicable regulatory framework. The AU data policy framework shall serve as one of many guiding documentation as the AU manifests an economic and regulatory framework similar to the European Union.

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