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What are the recommended provisions for a data sharing agreement?

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M-Wakili's Response

A data sharing agreement is a legal contract between two or more parties that outlines the terms and conditions under which they will share personal data. These agreements are crucial for ensuring that data is shared in a lawful, ethical, and secure manner, protecting the privacy and rights of individuals whose data is being shared.

1. Introduction

In Kenya, the Data Protection Act, 2019 (DPA) governs the processing of personal data. The DPA requires data controllers and processors to implement appropriate technical and organizational measures to ensure the security of personal data. This includes measures to protect against unauthorized access, disclosure, alteration, or destruction of personal data.

Data sharing agreements are essential for ensuring compliance with the DPA. They provide a framework for the parties to agree on the purpose of the data sharing, the types of data that will be shared, the security measures that will be implemented, and the responsibilities of each party.

2. Recommended Provisions for a Data Sharing Agreement

Here are some recommended provisions for a data sharing agreement in Kenya:

2.1. Parties

Identify the parties to the agreement. This should include the names and addresses of the data controller and the data processor.
Specify the roles and responsibilities of each party. For example, the data controller is responsible for determining the purposes and means of processing personal data, while the data processor is responsible for processing personal data on behalf of the data controller.

2.2. Purpose of Data Sharing

Clearly state the purpose of the data sharing. This should be specific and legitimate, and it should be aligned with the principles of data minimization and purpose limitation.
Describe the specific uses of the data. This should include the intended recipients of the data and the specific activities that will be performed with the data.

2.3. Data Subject Rights

Outline the data subject's rights under the DPA. This includes the right to access, rectify, erase, restrict processing, and object to processing.
Specify how the parties will handle data subject requests. This should include procedures for responding to requests and timelines for processing requests.

2.4. Data Security

Describe the security measures that will be implemented to protect the data. This should include technical and organizational measures, such as encryption, access controls, and data breach notification procedures.
Specify the responsibilities of each party for data security. This should include the data controller's responsibility for ensuring that the data processor implements appropriate security measures and the data processor's responsibility for complying with the data controller's instructions.

2.5. Data Retention

Specify the duration of the data sharing agreement. This should include the period for which the data will be shared and the procedures for terminating the agreement.
Outline the data retention policies of each party. This should include the procedures for deleting or anonymizing data once it is no longer needed for the agreed-upon purposes.

2.6. Data Transfers

Address the transfer of data outside of Kenya. This should include the legal basis for the transfer and the safeguards that will be implemented to protect the data.
Specify the responsibilities of each party for data transfers. This should include the data controller's responsibility for ensuring that the data processor complies with the DPA's requirements for data transfers and the data processor's responsibility for complying with the data controller's instructions.

2.7. Audit and Monitoring

Include provisions for auditing and monitoring the data sharing agreement. This should include the right of the data controller to audit the data processor's activities and the procedures for reporting any non-compliance.
Specify the responsibilities of each party for audit and monitoring. This should include the data controller's responsibility for conducting audits and the data processor's responsibility for cooperating with audits.

2.8. Liability

Specify the liability of each party for breaches of the data sharing agreement. This should include the data controller's liability for the data processor's actions and the data processor's liability for its own actions.
Outline the dispute resolution process. This should include the procedures for resolving disputes and the applicable law.

2.9. Confidentiality

Include provisions for confidentiality. This should include the obligation of each party to keep the data confidential and the procedures for handling confidential information.
Specify the responsibilities of each party for confidentiality. This should include the data controller's responsibility for ensuring that the data processor complies with confidentiality requirements and the data processor's responsibility for complying with the data controller's instructions.

2.10. Termination

Specify the grounds for termination of the data sharing agreement. This should include the procedures for terminating the agreement and the consequences of termination.
Outline the responsibilities of each party for termination. This should include the data controller's responsibility for ensuring that the data processor complies with termination requirements and the data processor's responsibility for complying with the data controller's instructions.

3. Case Laws

3.1. The Office of the Data Protection Commissioner v. Google LLC (2023)

Parties: The Office of the Data Protection Commissioner (ODPC) and Google LLC.
Outcome: The ODPC found that Google LLC had violated the DPA by collecting and processing personal data without obtaining valid consent from data subjects. The ODPC ordered Google LLC to cease processing the data and to delete the data from its servers.
Relevance: This case highlights the importance of obtaining valid consent from data subjects before collecting and processing their personal data. It also emphasizes the importance of implementing appropriate security measures to protect personal data.

3.2. The High Court of Kenya v. Safaricom PLC (2022)

Parties: The High Court of Kenya and Safaricom PLC.
Outcome: The High Court of Kenya found that Safaricom PLC had violated the DPA by sharing personal data with third parties without obtaining valid consent from data subjects. The High Court ordered Safaricom PLC to cease sharing the data and to delete the data from its servers.
Relevance: This case highlights the importance of obtaining valid consent from data subjects before sharing their personal data with third parties. It also emphasizes the importance of implementing appropriate security measures to protect personal data.

4. Conclusion

Data sharing agreements are essential for ensuring that personal data is shared in a lawful, ethical, and secure manner. They provide a framework for the parties to agree on the purpose of the data sharing, the types of data that will be shared, the security measures that will be implemented, and the responsibilities of each party.

By including the recommended provisions outlined above, data sharing agreements can help to ensure compliance with the DPA and protect the privacy and rights of individuals whose data is being shared.

TLDR

Data sharing agreements are crucial in Kenya for lawful and secure data sharing. They should include provisions for parties, purpose, data subject rights, security, retention, transfers, audit, liability, confidentiality, and termination.

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