It’s been almost two years since I penned this guide on commercial leases in Kenya. Since the outbreak of the COVID-19 pandemic, the article has generated a lot of interest from readers. So much so, that it prompted me to provide further insight on how to handle your lease in light of the pandemic.
The operationalization Kenya Data Protection law is gaining momentum. The appointment of the Data Commissioner shall pave way for enforcement and regulation of personal data use. In this short video, I share some of the basic concepts contained in the Kenya Data Protection Act.
On 25th November 2019, Kenya enacted the Data Protection Act. If you are a Human Resource practitioner, you need to familiarise yourself with the requirements of this Act because it places a high compliance burden with regard to the handling of personal data. This article looks at ways in which the Data Protection Act will affect the HR function and how HR practitioners can prepare for compliance.
In a previous article, I discussed some of the reasons why a mobile app may need a privacy policy. The reasons set out there apply not only to mobile apps but also to all websites and online applications. This week, we consider some best practices for developing and deploying online privacy policies.
Have you developed or do you own a Mobile App? Does the App collect personal data such as email addresses, identification numbers, or banking information from users? If so, then it’s imperative that you have a Privacy Policy.
The future is here. The future is in online business. According to a recent article by the Economist, “responding to COVID-19 has seen many people and companies realise that IT had more to offer them than they had realised.” Indeed, most tech or online companies are reaping big in spite of the pandemic. Therefore, it makes sense to consider starting or moving your business online. This article considers some of the legal aspects relevant to online businesses.
Have you recently visited a website, placed an order and paid for an item from the comfort of your desk? If so, you have been party to an electronic contract (“E-Contract”) i.e. an agreement formed and concluded online. In this article, we consider the essential legal elements of E-contracts.
If there is one thing we can all agree is that we are all “Covid’-out”. I mean the amount of information and misinformation out there is insane. As you are sifting through this information, you have other worries e.g. will my children be ok? what about my parents? is our food supply sufficient? will I still have a job when this is all over? am I at risk of catching the disease? These worries and the gloomy messages all around are enough to cause severe illness and depression. In this article, I focus on some of the ways you can maintain your positivity and preserve your mental health in these uncertain times.
A lot has happened since last Friday. Kenya has not only confirmed its first coronavirus case but also, taken steep measures to contain the spread of the virus. The President of the Republic recommended remote work policies as one of the control measures. Globally, the coronavirus outbreak has caused fear, panic, and pandemonium and created an environment ripe for compliance breaches. As in-house counsel, be on the lookout and safeguard your organisation accordingly. How?
Trade secrets differ from other forms of Intellectual property (“IP”) in that the mode of their protection is not codified under Kenyan law. This does not mean that they are not important. In fact, if well protected, trade secrets can give an organisation a distinctive competitive advantage. This article considers ways in which in-house counsels can drive the trade secret protection agenda in their organisations. WHAT IS A TRADE SECRET? As stated in the preceding section, there is no legislation in Kenya governing trade secrets and hence no local definition of the term “trade secret”. However, Kenya is a member of the World Trade Organisation and by extension a party to the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. This Agreement sets the minimum standards for regulation of various forms of IP, including trade secrets. According to Article 39 (2) of TRIPS, trade secrets contain three distinctive characteristics: – Accordingly, any and all information that meets the above requirements may be considered a trade secret. Typical examples of trade secrets include strategy and business plans, customer/client lists, pricing lists, products, models, marketing and sales plans, financial projections, financial statements, budgets, test procedures, proposed products, source code, software, hardware, employee employment records, salary, etc. TRIPS further provides that the owner of a trade secret has the right to prevent the information from being disclosed, acquired or used by others without their lawful consent. STEPS FOR PROTECTING TRADE SECRETS In-House counsel can drive the protection strategy in the ways discussed below. 1. Sensitize Management In-House projects work best when supported by the leadership and other key stakeholders within an organisation. As a first step, the Head of Legal or the departmental leader should sell the agenda of trade secret protection to management teams so as to get their buy-in. The most effective way to get buy-in is to demonstrate the benefits of the project to the organisation. Some potential advantages include:- 2. Develop Trade Secret Protection Procedures Trade secrets can be protected through a raft of internal and external measures. Internal protection measures include IT security measures such as data encryption, data access controls, firewalls, etc. Physical controls are also useful in internal protection. For example, biometric access should be installed for strong rooms, filing spaces and any other place where trade secrets are kept. Further, use fireproof safes for storing confidential information. Finally, use physical controls to restrict access to office spaces. For documents, consider measures such as marking hard and soft copy information as confidential. Finally, endeavor to limit access to confidential information by sharing it on a need-to-know basis. When working with external parties, such as suppliers and contractors use a confidentiality agreement. You can get more information on 3rd party confidentiality agreements in my earlier article accessible here. 3. Determine Applicable Enforcement Measures According to the World Intellectual Property Organisation, 80% of trade secrets are leaked or stolen by employees and trusted insiders. If there are no consequences for breach of the policy, then it will be hard to get the desired results from your employees. Demand adherence to trade secret policies in your employment policies and contracts by stating that deliberate leakages may lead to termination of employment. Contracts can also specify further action such as seeking injunctive orders to prevent further leakages and monetary compensations (damages) for any loss suffered. 4. Maintain a Culture that Promotes Secrecy of Information Prior to hiring, conduct reference checks on prospective employees. The checks should determine the employee’s propensity to leak/mishandle company information. Once they join the company, train them on the need to maintain confidentiality and require them to sign employee confidentiality agreements. During the course of employment, conduct regular refresher training on confidentiality. There is no hard and fast rule on the frequency of the training but at a minimum, they should be done annually. Conduct exit interviews and remind employees that the duty to protect trade secrets continues post-employment. The duty to maintain confidentiality survives the employment contract. This means that if there is an attempt to move with the information to a competitor, the employee should be informed that the enforcement measures will still apply. 5. Promote Employee Loyalty Keeping trade secrets confidential is an uphill task that cannot be fully accomplished by merely setting out organizational policies and processes. If employees do not commit to the success of your policies, they will have limited effectiveness. Employee commitment comes from loyalty and this in turn comes from developing a favourable workplace culture. Employees will feel committed to your cause where the organisational culture is open, low power distance, genuine care, and concern and a general familial feel. Advocate for cultural change through the initiation of staff welfare activities or attractive pay packages that encourage observance of trade secrets protection. CONCLUSION Compared with other forms of IP, it is fairly easy to protect trade secrets. A Trade Secret Policy can help in effective management of trade secrets. The success of this policy hinges on the culture of your workplace. Without a transparent culture that promotes loyalty, you may not get enough traction in your promotion activities.