technology regulatory practices and has seen a flurry of instruments in recent
times, all aimed at addressing emerging challenges hence the EU Digital
Services Act75 or EU Artificial Intelligence Act76 among others. These Acts will
reinforce position of the EU as an influencer in regulatory processes and
integrated economy driven by the protection of personal data from a human
rights perspective and encouraging data sharing and cross border data
transfers.
Cross border data transfers are increasing with the development of integrated
and digital single markets (DSM). The regulatory environment is not
responding with speed to enable an African or Southern African digital single
market (DSM) that protects personal data across borders. A fragmented
regional legal regime complicates regional market integration and undermines
the usefulness of data transfers in a digital economy. The rapid ratification of
trade agreements such as the African Continental Free Trade Agreement
(AFCTA) demonstrates the importance of free movement of goods and
persons, and data across borders. And in this regard, data protection
authorities are essential to realisation of DSM not only from a trade perspective
but enforcing the multidimensional aspect of data privacy, easily ignored trade
conversations. The use of binding corporate rules (BCR) and standard contract
clauses (SCR) mentioned in most data protection laws, is a short-term and very
transactional in nature. However, as countries are moving to adopt digital
identity systems or more robust digital economies, BCRs and SCRs are
insufficient, as country risk are wider than single company or transaction
certification. Holistic data protection based on adequacy determination and
certification is ideal in advancing regional integration.
The cost of data breaches on companies is huge, and unfortunately the cost of
individual privacy is hardly calculated. Absence of a culture of transparency and
accountability, especially among public data controller means that, data
breaches in African countries are not public. A few private data controllers have
disclosed breaches in South Africa, but in other countries there is denial or total
secrecy which feeds into the non-transparent conduct on many private data
controllers. In addition, there is a general contempt and disregard for nonWestern authorities especially by global technology private companies. The
instruments at the disposal of global south, especially African DPAs is limited.
The perceived or real limited economic and market interests in African
Digital Services Act came into force on November
. The DSA protects users and contest removal of content by platforms, provides for
dispute resolution mechanisms, transparent terms and conditions for platforms; stronger obligations for large online platforms to assess and
mitigate risks, protections for minors, bans on targeted adverts on online platforms directed at minors or using sensitive personal data among
others.
European Commission.
. Proposal for a Regulation of the European Parliament and of the Council laying down harmonised rules on
artificial intelligence Artificial Intelligence Act and amending certain Union legislative acts. COM/ / final. Available at: https://eur
lex.europa.eu/legal content/EN/TXT/?uri=CELEX:
PC
accessed April
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