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What are the recommended provisions for a data sharing agreement?
Introduction
In Kenya, data sharing agreements are essential for ensuring that data is shared in a manner that is compliant with the law, protects the rights of data subjects, and maintains the integrity and confidentiality of the data. The primary legal framework governing data protection and sharing in Kenya is the Data Protection Act, 2019. This Act outlines the principles and obligations that must be adhered to when handling personal data. Additionally, other relevant laws and regulations may apply depending on the context of the data sharing.
Table of Contents
Legal Framework
Data Protection Act, 2019
Other Relevant Laws
Key Provisions in a Data Sharing Agreement
Purpose of Data Sharing
Types of Data to be Shared
Legal Basis for Data Sharing
Data Subject Rights
Data Security Measures
Data Retention and Disposal
Roles and Responsibilities
Data Breach Notification
Dispute Resolution
Termination of Agreement
Review and Amendment of Agreement
Conclusion
1. Legal Framework
Data Protection Act, 2019
The Data Protection Act, 2019 is the cornerstone of data protection and privacy in Kenya. It establishes the principles of data protection, the rights of data subjects, and the obligations of data controllers and processors. Key sections relevant to data sharing agreements include:
Section 25: Principles of data protection
Section 26: Rights of data subjects
Section 29: Obligations of data controllers and processors
Section 31: Data sharing and transfer
Other Relevant Laws
Depending on the nature of the data and the entities involved, other laws may also be relevant, such as:
The Kenya Information and Communications Act, 1998: Governs electronic transactions and communications.
The Health Act, 2017: Contains provisions on the confidentiality and sharing of health data.
The Banking Act, 1989: Includes provisions on the confidentiality and sharing of financial data.
2. Key Provisions in a Data Sharing Agreement
A comprehensive data sharing agreement should include the following provisions:
Purpose of Data Sharing
Description: Clearly state the purpose for which the data is being shared.
Legal Basis: Reference the specific legal basis under the Data Protection Act, 2019 that justifies the data sharing (e.g., consent, performance of a contract, compliance with a legal obligation).
Types of Data to be Shared
Categories of Data: Specify the types of data that will be shared (e.g., personal data, sensitive personal data).
Data Minimization: Ensure that only the data necessary for the stated purpose is shared, in compliance with the principle of data minimization under Section 25 of the Data Protection Act, 2019.
Legal Basis for Data Sharing
Consent: If data sharing is based on consent, ensure that the consent is informed, specific, and freely given.
Other Legal Bases: If data sharing is based on other legal grounds (e.g., performance of a contract, legal obligation), provide the relevant details.
Data Subject Rights
Access and Correction: Outline the process for data subjects to access and correct their data.
Objection and Restriction: Provide mechanisms for data subjects to object to or restrict the processing of their data.
Data Portability: Include provisions for data portability, if applicable.
Data Security Measures
Technical and Organizational Measures: Detail the security measures that will be implemented to protect the data (e.g., encryption, access controls).
Compliance with Section 29: Ensure that the measures comply with the obligations of data controllers and processors under Section 29 of the Data Protection Act, 2019.
Data Retention and Disposal
Retention Period: Specify the duration for which the data will be retained.
Disposal Methods: Outline the methods for securely disposing of the data once it is no longer needed.
Roles and Responsibilities
Data Controller and Processor: Clearly define the roles and responsibilities of each party involved in the data sharing.
Sub-processors: If sub-processors are involved, include provisions for their oversight and compliance.
Data Breach Notification
Notification Requirements: Detail the procedures for notifying the relevant authorities and affected data subjects in the event of a data breach, in compliance with Section 43 of the Data Protection Act, 2019.
Mitigation Measures: Include measures for mitigating the impact of a data breach.
Dispute Resolution
Mechanisms: Provide mechanisms for resolving disputes that may arise from the data sharing agreement (e.g., mediation, arbitration).
Jurisdiction: Specify the jurisdiction and applicable law for resolving disputes.
Termination of Agreement
Termination Conditions: Outline the conditions under which the agreement can be terminated.
Post-Termination Obligations: Specify the obligations of the parties after termination, including the return or destruction of data.
Review and Amendment of Agreement
Review Process: Include provisions for regularly reviewing the agreement to ensure its continued relevance and compliance with the law.
Amendment Procedures: Detail the procedures for amending the agreement.
Conclusion
A well-drafted data sharing agreement is crucial for ensuring that data is shared in a manner that is compliant with Kenyan law, protects the rights of data subjects, and maintains the integrity and confidentiality of the data. By including the recommended provisions outlined above, parties can create a robust framework for data sharing that aligns with the principles and obligations set forth in the Data Protection Act, 2019 and other relevant laws.
In summary, the key provisions to include in a data sharing agreement are:
Purpose of Data Sharing
Types of Data to be Shared
Legal Basis for Data Sharing
Data Subject Rights
Data Security Measures
Data Retention and Disposal
Roles and Responsibilities
Data Breach Notification
Dispute Resolution
Termination of Agreement
Review and Amendment of Agreement
By adhering to these provisions, parties can ensure that their data sharing practices are legally compliant and protect the rights and interests of all stakeholders involved.
Answered by mwakili.com