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REGULATION AND PROTECTION OF CHILDREN’S DATA ON SOCIAL MEDIAPLATFORMS.

BACKGROUND:
TikTok Information Technologies UK Limited and TikTok Inc (TikTok) were fined £12,700,000 by
the Information Commissioner’s Office (ICO) for a number of data protection legislation
violations, including failing to use children’s personal data legitimately.

Despite its own policies prohibiting children under 13 from opening an account, the ICO
estimates that TikTok allowed up to 1.4 million UK children under 13 to use the site in 2020.

According to UK data protection law, organizations that provide information society services to
children under 13 must acquire parental or guardian agreements before using personal data
about them.

  • The UK General Data Protection Regulation (UK GDPR) was broken by TikTok between May2018 and July 2020 in the following ways, according to the ICO:
  • Offering its services to children under the age of 13 in the UK and processing their personal information without their parents’ or guardians’ permission;
  • Failing to adequately notify platform users about how their data is collected, utilized, and shared in a clear and understandable manner. Without that knowledge, platform users—especially young users were unlikely to be able to decide for themselves whether and how to interact with it;
  • Failing to make sure that the personal data of its UK users were handled fairly, lawfully, and in an open manner.

There has been a lot of controversy and heated debates on the use of this platform by minors.The majority of people believe this site is highly inappropriate for minors to use and believe. serious measures should be set in place to protect minors. This begs the question, does Kenya have laws or regulations to safeguard minors’ interests in online platforms such as Tik Tok?

KENYAN LEGAL FRAMEWORK

The Data Protection Act of 2019 defines sensitive personal data as revealing the names of a
person’s children. It further states that one cannot process the personal data of a child without
parental consent or unless it advances the best interests of a child. 2 Additionally, the Act states
that a data processor or controller should set in place mechanisms for age verification and
consent to process a child’s personal data namely;

  • Available technology;
  • Volume of personal data processed;
  • Proportion of such personal data likely to be that of a child;
  • Possibility of harm to a child arising out of the processing of personal data; and
  • Such other factors as may be specified by the Data Commissioner.

The are various harmful activities that can arise from the use of TikTok by minors which include;

  • Grooming – defined in the Children’s Act 2022 as the establishment of a relationship through electronic means to manipulate a child and facilitate sexual contact.
  • Online abuse, harassment, or exploitation in which minors may be subjected to cyberbullying and stalking from adults.
  • Child pornography – this is where a minor’s photos or images may be used and distributed for sexual purposes and is an offence as per the Computer, Cybercrimes and Misuse Act 2018.


These are some of the dangers that our children may be subjected to if online platforms such as
Tik Tok fail to set up and enforce regulatory mechanisms to protect them. However, it is evident
as per the issue in the United Kingdom, that these platforms are profit-based and will do
anything to gain more followers to boost its popularity and sales.

This is the main reason why the Office of the Data Protection Commissioner as established
under Section 5 of the Data Protection Act has the following powers;

  • Promote self-regulation among data controllers and data processors;
  • Conduct an assessment, on its own initiative of a public or private body, or at the request of a private or public body for the purpose of ascertaining whether the information is processed according to the provisions of this Act or any other relevant law;
  • Receive and investigate any complaint by any person on infringements of the rights under this Act;
  • Conduct inspections of public and private entities with a view to evaluating the processing of personal data.


The Data Protection Commissioner is thus mandated by law to ensure that TikTok and other
online platforms create mechanisms to protect the data of children using their platforms and
regulate the content that they view.

CONCLUSION

Kenya has the necessary legal framework to protect data of the minors. It is up to the Kenyan
public to raise issues or file a complaint against these online platforms if there are no
mechanisms to safeguard our children. Finally, the Data Protection Commissioner is legally
obliged to compel these platforms to protect children and raise punitive measures against
platforms that fail to do so.

REFERENCE

Data Protection Act 2019
Children’s Act 2022
Computer and Cybercrimes and Misuse Act 2018.

For More Information Please Contact
benson.ngugi@attorneysafrica.com
Gladys.kihara@attorneysafrica.com

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A REVIEW OF THE COMPETITION (AMENDMENT) BILL 2024 (the Bill)

Introduction

The Competition Authority of Kenya (CAK) has proposed a series of changes to the Competition Act Cap. 504 Laws of Kenya (the Act) in response to emerging regulatory issues, such as those presented by digital marketplaces. CAK also aims to incorporate lessons learned from its enforcement experience and international best practices.

Some of the areas that the Bill seeks to amend include abuse of buyer power, mergers, criteria for determining dominant position, and financial penalties.

We will provide an overview of some of the key provisions of the Bill below.

Key Provisions

New Definitions

The Bill introduces some new definitions to the Act. The terms “business consumer”, “digital activities”, “product information standards”, “strategic market position” and “superior bargaining position” have all been introduced to the Act.

Superior Bargaining Position

The proposed Bill aims to replace the term “abuse of buyer power” with “superior bargaining position.” According to the Bill, a superior bargaining position refers to the ability of an enterprise to control, direct, define, or determine business operation conditions with counterparties, in a manner that benefits the enterprise, regardless of its dominant market position or power. The Bill prohibits any conduct that amounts to abuse of superior bargaining position in the Kenyan market or a substantial part of it. The Bill also grants the CAK the power to monitor the activities of any sector or enterprise that it believes is experiencing or likely to experience abuse of superior bargaining position. CAK is authorized to impose reporting and prudential requirements to ensure compliance and establish a code of conduct for such sectors.

Some behaviours that constitute abuse of a superior bargaining position include delays in payment without justifiable reasons, unilateral termination or threats of termination of a commercial contract without adequate notice, unilateral variation of contractual terms, transferring costs to the counterparty, and imposing unfair commercial risks meant to be borne by the other party.

Additionally, demanding preferential terms unfavourable to the other party, setting purchase or service prices below competitive levels, unreasonably collecting and/or processing personal data of the counterparty, imposing unduly difficult conditions for the termination of services, and obstructing business activities or interfering in the counterparty’s management of its business also amount to abusing a superior bargaining position.

Those found guilty of abusing their superior bargaining position can face imprisonment for up to five years, a fine not exceeding KES. 10 million, or both.

Mergers

The Bill proposes adding mergers of institutions that have been privatized to section 41 of the Act, which defines a merger. CAK may also request public input on a proposed merger within 14 days of receiving notification of the proposed merger.

Financial Penalty

The Bill introduces a financial penalty of up to 10% of the immediately preceding year’s gross annual turnover in Kenya for an undertaking that contravenes any lawful order given by CAK under the Act.

Consumer Protection

The Bill proposes to strengthen consumer protection measures, including mandatory disclosure of product information and prohibition of withholding material information about product quality and use.

Conclusion

The Competition Authority of Kenya (CAK) states that the proposed amendments are intended to enhance its ability to carry out its mandate and ensure efficient operation of the Kenyan market.

CAK has invited the public to provide comments on the Bill. Feedback can be submitted through the Bill and Stakeholder Feedback Tool, which is accessible at: Stakeholder Views Collection Matrix.xlsx (live.com).

For More Information Please Contact

kabu.karanja@attorneysafrica.com

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COMPETITION AUTHORITY OF KENYA CRACKING DOWN ON HIDDEN FEES

The Competition Authority of Kenya (CAK) is cracking down on banks that impose charges on customers, charges that had not been previously disclosed to the customer. This is in line with the authority’s prerogative under Section 56(3) of the Competition Act, which states as follows: –

A person shall not, in the provision of banking, micro-finance, insurance and other services, impose unilateral charges and fees, by whatever name called or described, if the charges and the fees in question had not been brought to the attention of the consumer prior to their imposition or prior to the provision of the service.

CAK has accused some tier-one banks of providing misleading information to customers or failing to disclose additional charges to customers during lending, violating agreements with customers, and imposing unfair charges on customers. These practices have led to financial hardships, defaults in loan repayment, and damaged credit scores.

The move by CAK has come amid growing concerns by members of the public of additional and hidden charges imposed by lenders in the conduct of their business.

Previously, the banks handled complaints of this nature, often leading to dead ends. Now, with increased consumer education initiatives, borrowers are more aware of their rights and can escalate issues to the CAK for investigation.

The CAK investigates most of these cases; however, some are forwarded to the Central Bank of Kenya and the Insurance Regulatory Authority for further action.

This move by the CAK, aimed at improving information symmetry between banks and their customers, is a step towards fostering customer trust in banks and ensuring fairness in the banking sector.

For more information please contact

info@attorneysafrica.com

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REVISED STAMP DUTY RATES FOR GAZETTED URBAN AREAS AND MUNICIPALITIES

Pursuant to the Stamp Duty Act, the Ministry of Lands, Public Works, Housing and Urban
Development (“the Ministry”) has declared that on the transfer of land, the stamp duty payable by
purchasers on the list of gazetted urban areas and municipalities is now 4% of the value of the
property or land. This doubles the amount payable from the previous rate of 2%.


Stamp duty is tax that is imposed by the government on various legal instruments, including
instruments that affect property, assets and the transfer of land. Purchasers bear the obligation of
paying for stamp duty on the transfer of land. For example, when buying a house, apartment or piece
of land. The amount of stamp duty payable is calculated based on a percentage of the value of the
subject-matter.


The Ministry announced the new rates, which are to be implemented with immediate effect, via a
letter addressed to all Land Registrars on 5th April 2024. The directive will be implemented in various
cities and urban areas, such as Nakuru, Naivasha, Kiambu, Eldoret, Kisumu, Ngong, Kitengela and
Kajiado. We advise all affected parties, particularly those that are in the process of purchasing
property or land in these areas, to ensure they comply with the new directive.
Below is a table with the full list of Gazetted Urban Areas and Municipalities.

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LEGAL ALERT ON THE DRAFT ENERGY (ELECTRICITY MARKET,BULK SUPPLY, AND OPEN ACCESS) REGULATIONS, 2024

      Introduction:

      On 21 February 2024, the Energy and Petroleum Regulatory Authority (EPRA) released the Draft Energy (Electricity Market, Bulk Supply, and Open Access) Regulations, 2024 (the Proposed Regulations). The Proposed Regulations are aimed at governing the electric power, coal, renewable energy, and petroleum subsectors. They apply to the generation, importation, exportation, transmission, distribution, and retail supply of electrical energy in Kenya.

      Key Objectives:

      The objectives of the Proposed Regulations are as follows:

      • providing guidance on reviewing the electricity market;
      • governing operations and management of the electricity market, open access, and bulk supply;
      • promoting competition, efficiency, reliability, and service quality;
      • ensuring non-discriminatory open access to enhance competition;
      • attracting investment in energy infrastructure; and
      • enhancing accountability, transparency, and efficiency in the electricity market.

      Key Provisions:

      We set out below some of the key provisions in the Proposed Regulations:

      • The Electricity Market Structure: The Proposed Regulations provide for the conduct of a market review to be conducted by EPRA in consultation with the Cabinet Secretary responsible for energy (the Cabinet Secretary). EPRA is also required to involve stakeholders in the energy sector while undertaking the market reviews and subsequent guidelines. This review should be done within 3 years. Subsequent reviews should be undertaken at least once every five (5) years. Upon conclusion of the market reviews, EPRA is required to publish a report in the Kenya Gazette within 30 days of concluding the review. The first market review will be essential in informing Kenya’s electricity market structure and design.Once the first report is gazetted, EPRA in consultation with the Cabinet Secretary to issue and gazette guidelines on the structure of the electricity market within 6 months after gazettement of the market report.
      • Open access: transmission and distribution licensees will be required to provide ‘non-discriminatory open access” to their transmission or distribution system. This will enable any other licensees or eligible consumers to use the systems, upon payment of wheeling or use of system charges and other prescribe fees. Consumers will also have the liberty of selecting their preferred retail suppliers provided that the consumer has not entered into two supply contracts for the same premises.
      • Minimum roles: The Proposed Regulations outline the minimum roles of a generation licensee, transmission licensee, distribution licensee, retail supply licensee, eligible consumers and system operators all in an effort to promote equity and fairness in Kenya’s electricity market.
      • Tariffs: The Proposed Regulations require EPRA to prescribe generation and retail tariffs and charges for network service, wheeling, use of system and ancillary services. Licensees will be required to apply to EPRA for approval for approval of tariffs which will take effect on the commercial operation date under the respective commercial agreement. Licensees will be able to recover capital costs, O&M costs, depreciation, return on equity, other finance costs and taxes from the tariffs.
      • Bulk Supply: The Proposed Regulations set out a framework for bulk supply. Under the Proposed Regulations bulk supply shall be the supply of electrical energy by a licensee to another licensee and not to a consumer. The format of the bulk supply application and agreement are prescribed by the Regulations.
      • Non-compliance sanctions: Offences and penalties under the Proposed Regulations include giving false and misleading information at application stage and failure to comply with the regulations, orders or prohibitions of the Authority. The proposed sanctions where one is found liable are both custodial and non-custodial.
      • Dispute resolution: The Proposed Regulations require that where there are disputes and/or complaints that the internal mechanisms provided under the complaints and dispute resolution regulations. Additionally, a person aggrieved or dissatisfied with the decision of the Authority may appeal the same at the tribunal and then the High Court within 30 days of the Tribunal’s decision.

      Stakeholder Engagement Workshop:

      EPRA has scheduled a stakeholder engagement workshop on 4March, 2024, at the Sarova Stanley Hotel in Nairobi, running from 8:00 a.m. to 3:00 p.m. The workshop aims to provide a platform for stakeholders to gain insights into the Proposed Regulations and to express their views. The proceedings will be accessible remotely through Zoom, YouTube, and Facebook.

      Public Participation:

      Stakeholders and members of the public are encouraged to actively participate in the regulatory process. The Proposed Regulations can be accessed here. Comments can be submitted through email at info@epra.go.ke or physically delivered to EPRA’s regional and headquarter offices.

      Conclusion

      The Proposed Regulations signify a significant step towards enhancing the regulatory framework in the energy sector, promoting transparency, competition, and efficiency. Stakeholder input is crucial in shaping the final regulations, and interested parties are encouraged to participate actively in the upcoming workshop and submit their comments for consideration.

      Note: This legal alert provides a general overview and is not a substitute for legal advice. Stakeholders are advised to review the full text of the Proposed Regulations for comprehensive understanding and seek professional advice as needed.

      For More Information Please Feel Free to Contact Us
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      Igeria & Ngugi Advocates Recognized in IFLR1000 2023 Rankings: A Milestone in Project Developments: Infrastructure

      We are thrilled to announce that Igeria & Ngugi Advocates has achieved yet another milestone by being recognized in the prestigious IFLR1000 2023 rankings. This acknowledgment positions our firm among the notable players in the field of Project Developments: Infrastructure.

      The IFLR1000 is a globally recognized guide to the world’s leading financial and corporate law firms and lawyers. Being listed as a notable firm in Project Developments: Infrastructure is a testament to our unwavering commitment to excellence, professionalism, and the delivery of high-quality legal services.

      We express our sincere gratitude to the IFLR1000 for acknowledging our dedication and expertise in the realm of infrastructure project developments. This recognition motivates us to strive for even greater heights and reinforces our belief in the value of the services we provide.

      A Commitment to Excellence

      At Igeria & Ngugi Advocates, we take pride in our team’s collective effort to deliver exceptional legal solutions. This recognition further fuels our commitment to excellence and encourages us to continue on this trajectory of success.

      As we celebrate this achievement, we remain focused on our commitment to providing top-notch legal services. Our goal is to contribute meaningfully to the growth and success of our clients and to continue being a trusted partner in their endeavors.

      We extend our appreciation to our clients, partners, and the entire team at Igeria & Ngugi Advocates for their unwavering support. We invite you to join us on this exciting journey as we continue to excel in the legal landscape.

      Here’s to more milestones and continued success!

      #IFLR1000 #LegalExcellence #ProjectDevelopments #Infrastructure #IgeriaNgugiAdvocates #MilestoneAchievement

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