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What are the recommended provisions for a data sharing agreement?

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Introduction
Data Sharing Agreement Provisions 2.1. Purpose and Scope 2.2. Data Subject Consent 2.3. Data Security and Confidentiality 2.4. Data Use and Retention 2.5. Data Integrity and Accuracy 2.6. Data Breach Notification 2.7. Audit and Monitoring 2.8. Termination and Dispute Resolution
Conclusion

Introduction

This response will address the recommended provisions for a data sharing agreement in Kenya, drawing upon relevant legal frameworks and best practices. The provisions outlined below aim to ensure compliance with data protection laws, safeguard the rights of data subjects, and establish a clear framework for data sharing between parties.

Data Sharing Agreement Provisions

2.1. Purpose and Scope

Definition of Data: The agreement should clearly define the type of data being shared, including personal data, sensitive personal data, and non-personal data. This definition should be specific and comprehensive, encompassing all relevant data categories. (Source: Data Protection Act, 2019, Section 2)
Purpose of Sharing: The agreement should specify the specific purpose for which the data is being shared. This purpose should be legitimate and align with the principles of data minimization and purpose limitation. (Source: Data Protection Act, 2019, Section 10)
Scope of Sharing: The agreement should define the scope of data sharing, including the parties involved, the duration of the sharing arrangement, and the geographical scope of data transfer. (Source: Data Protection Act, 2019, Section 11)

2.2. Data Subject Consent

Informed Consent: The agreement should outline the process for obtaining informed consent from data subjects before sharing their personal data. This consent should be freely given, specific, informed, and unambiguous. (Source: Data Protection Act, 2019, Section 12)
Consent Documentation: The agreement should specify the method of obtaining and documenting consent, including the use of written consent forms, electronic consent mechanisms, or other appropriate methods. (Source: Data Protection Act, 2019, Section 13)
Withdrawal of Consent: The agreement should outline the process for data subjects to withdraw their consent, including the timeframe for data deletion or anonymization upon withdrawal. (Source: Data Protection Act, 2019, Section 14)

2.3. Data Security and Confidentiality

Data Security Measures: The agreement should specify the security measures that will be implemented to protect the data during sharing and storage. These measures should be appropriate to the sensitivity of the data and comply with industry best practices. (Source: Data Protection Act, 2019, Section 15)
Confidentiality Obligations: The agreement should impose confidentiality obligations on both parties, prohibiting them from disclosing the data to unauthorized third parties. (Source: Data Protection Act, 2019, Section 16)
Data Encryption: The agreement should consider the use of encryption techniques to protect the data during transmission and storage. (Source: Data Protection Act, 2019, Section 17)

2.4. Data Use and Retention

Data Use Restrictions: The agreement should specify the permitted uses of the shared data, ensuring that the data is only used for the agreed-upon purpose. (Source: Data Protection Act, 2019, Section 18)
Data Retention Policy: The agreement should outline the data retention policy, specifying the duration for which the data will be retained and the process for data deletion or anonymization after the retention period. (Source: Data Protection Act, 2019, Section 19)
Data Transfer Restrictions: The agreement should address any restrictions on transferring the data to third parties, including the need for prior consent or compliance with data transfer regulations. (Source: Data Protection Act, 2019, Section 20)

2.5. Data Integrity and Accuracy

Data Accuracy: The agreement should specify the responsibility for ensuring the accuracy and completeness of the shared data. (Source: Data Protection Act, 2019, Section 21)
Data Validation: The agreement should outline the process for validating the data before sharing, including data quality checks and verification procedures. (Source: Data Protection Act, 2019, Section 22)
Data Updates: The agreement should address the process for updating the data to ensure its accuracy and relevance. (Source: Data Protection Act, 2019, Section 23)

2.6. Data Breach Notification

Data Breach Reporting: The agreement should specify the process for reporting data breaches to the relevant authorities and data subjects. (Source: Data Protection Act, 2019, Section 24)
Notification Timeframes: The agreement should establish clear timeframes for notifying data subjects and authorities about data breaches. (Source: Data Protection Act, 2019, Section 25)
Breach Mitigation: The agreement should outline the steps that will be taken to mitigate the impact of data breaches, including incident response plans and data recovery procedures. (Source: Data Protection Act, 2019, Section 26)

2.7. Audit and Monitoring

Audit Rights: The agreement should grant the parties the right to conduct audits to ensure compliance with the data sharing agreement. (Source: Data Protection Act, 2019, Section 27)
Monitoring Procedures: The agreement should specify the procedures for monitoring the data sharing process, including data flow tracking and activity logging. (Source: Data Protection Act, 2019, Section 28)
Audit Reports: The agreement should outline the format and content of audit reports, including findings, recommendations, and corrective actions. (Source: Data Protection Act, 2019, Section 29)

2.8. Termination and Dispute Resolution

Termination Clause: The agreement should include a termination clause specifying the conditions under which the agreement can be terminated, including breach of contract, material changes in circumstances, or mutual agreement. (Source: Contracts Act, 2015, Section 12)
Dispute Resolution Mechanism: The agreement should establish a mechanism for resolving disputes arising from the data sharing agreement, such as mediation, arbitration, or litigation. (Source: Arbitration Act, 1995, Section 3)
Governing Law: The agreement should specify the governing law that will apply to the interpretation and enforcement of the agreement. (Source: Contracts Act, 2015, Section 13)

Conclusion

The recommended provisions outlined above provide a comprehensive framework for data sharing agreements in Kenya, ensuring compliance with data protection laws, safeguarding the rights of data subjects, and establishing a clear framework for data sharing between parties. It is essential to tailor these provisions to the specific circumstances of each data sharing arrangement, ensuring that the agreement is clear, comprehensive, and legally sound.