Day 5: Policy and Regulatory Framework on Privacy and Data Protection- Offences and Remedies

The pro-rated model seems more practical, after all we want data processors
playing by the law, not causing irreparable financial harm when they
violate the law.

On Tue, Aug 28, 2018, 10:17 AM anyega jefferson <jeffersonanyega@gmail.com>
wrote:

> Good morning,
>
> The size of the data processor should have an effect on the magnitude of
> the fines. Although all offences are equal , all penalties can’t be the
> same ,otherwise it would be an academic exercise really. Of say, an
> individual offender were fined large amounts ,then basically the option
> would be a jail term by default for many non-wealthy persons.
>
>
>
> On Tue, Aug 28, 2018, 9:56 AM Grace Bomu via kictanet <
> kictanet@lists.kictanet.or.ke> wrote:
>
>> Offences are public in nature and their prosecution and sentencing is
>> carried out through the criminal justice system. Remedies on the other hand
>> may be considered from a civil lens and examples include damages,
>> restitution, coercive (injunctions) and declaratory remedies. They are
>> personal and their aim is to give justice to the injured person. A trend
>> with newer laws is the provision of both offences and remedies. In the
>> copyright law for example, in addition to criminal offences, one can
>> recover profits from pirated material.
>> Back to our bill, the following offences are created:
>>
>> *Offence *
>>
>> *Penalty *
>>
>> Knowingly supplying false information to the data commissioner during
>> registration as a data controller or processor ( clause 15 (3))
>>
>> General penalty under clause 59:
>>
>> 5 million shillings fine or 5 years imprisonment or both
>>
>> plus
>>
>> possible forfeiture of equipment and prohibition order
>>
>> Data controller or processor failing to notify the data commissioner
>> about a change in particulars (clause 16 (7))
>>
>> General penalty
>>
>> unlawful processing of personal data (clause 27)
>>
>> 5 million shillings fine or 5 years imprisonment
>>
>> Unlawful processing of sensitive personal data (part v)
>>
>> 5 million shillings fine or 5 years imprisonment
>>
>> Refusing to comply with a notice from the data commissioner or knowingly
>> furnishing the commissioner with false information during investigations
>> (clause 52(3))
>>
>> General penalty
>>
>> Disclosure of personal data by controller against specified purpose
>> (clause 58 (1))
>>
>> General penalty
>>
>> Disclosure of personal data by processor without authority of controller
>> (clause 58 (2))
>>
>> General penalty
>>
>> Obtaining personal data without prior authority of controller or
>> processor (clause 58 (3)(a))
>>
>> General penalty
>>
>> Disclosure to a third party (clause 58 (3) (b))
>>
>> General penalty
>>
>> Offer (advertisement) to sell personal data obtained through unlawful
>> disclosure ((clause 58 (4))
>>
>> General penalty
>>
>> The bill has taken the criminal law track and has not provided remedies
>> targeting persons injured by contravention of the bill. It does however
>> create a complaints mechanism where the public can lodge complaints with
>> the data commissioner. The powers of the commissioner in addressing such
>> complaints are limited to issuing notices.(and we shall be discussing more
>> about the office powers of the data commissioner in due course)
>>
>> Our discussion today is on the question of choosing the offences route as
>> opposed or in addition to the civil route. What are our thoughts on this?
>> Should we have borrowed the pro-rated model of the GDPR where
>> controllers/processors are charged administrative fines according to their
>> revenue?
>> And when we come to offences, are they adequate? Should the magnitude of
>> the offence be measured against the size of the data processor or are all
>> sins equal despite might of the transgressor?
>>
>> Listers, please share your views on these issues. As usual, we welcome
>> identification of good and problematic clauses. Welcome to the discussion.
>>
>> —
>> Grace Mutung’u
>> Skype: gracebomu
>> @Bomu
>> PGP ID : 0x33A3450F
>>
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>

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