Regulate digital content transactions

Benson Kaya

The Kenyan legal framework on consumer law protection is markedly stunted. The reason is that it has failed to address new aspects of consumer trends. Technological advancements have left our laws lagging. Disappointingly, our consumer framework is left playing catch up!

Kenyan laws, generally, are borrowed from jurisprudentially advanced jurisdictions like the United Kingdom. Recently, the United Kingdom enacted commercially sound and consumer friendly legislation, The Consumer Rights Act, 2015 (CRA). This splendid legislation consolidates and reforms key areas of interest. The two major areas of concern were consumer rights and remedies in respect of goods, services and digital content and, unfair terms in consumer contracts (e-contracts included) and consumer notices.

The Act has a critical focus on protecting the consumer. It introduces additional remedies for consumers and, by extension, introduction of consumer collective compensation for anti-competitive behaviour.

The main reason for the enactment are complications in the existing laws, the overlapping characteristic of consumer laws; notably too, the laws failed to address technological advancements. These factors are similar to those of Kenya. The laws on consumer protection irritably overlap and are inundated with cross-references. The objective of the CRA is thus to “achieve a simple, coherent framework of consumer legislation by simplifying and consolidating existing law”. Remarkably, it seeks to modernise and equip in dealing with developments in the digital technology.

Perhaps the most important part of CRA is Chapter 3 of Part 1, which introduces new consumer rights and remedies in respect of digital content. The Act defines digital content as data, which are produced and supplied in digital form, including software, music, computer games and applications. Kenya is advancing technologically; this aspect of the CRA is very important and merits adoption. The number of youth dealing in software engineering, development of computer games, app creation and design and website design has exponentially increased. This therefore demands an immediate amendment of our consumer laws to reflect these digital advancements.

The fact that digital content does not reflect in the consumer law framework means that a consumer or a trader has no recourse in law if the transaction fails. The reason is that digital content, such as an app, is not recognized as a good in the Kenyan framework. The Sales of Goods Act cap 31 defines good to include “all chattels personal other than things in action and money, and all emblements, industrial growing crops and things attached to or forming part of the land, which are agreed to be severed before sale or under the contract of sale”. The definition points to the regressive nature of the legal framework itself. It has no room for digital content. Surprisingly, there is not even a rumour of addressing the matter.

This inadequacy thus implies that for digital content that does not meet the consumer standards, consumers have no remedies against a trader. The consumer should have remedial measures, such as demanding the trader to repair or replace the item within a reasonable time and a right to price reduction and refund. This inadequacy is a fundamental one because it makes the regime of digital content transactions unregulated.

Similar to the CRA the amendment to our consumer framework should include statutory rights under a digital content contract – for example, the consumer’s right to enforce terms about a digital content, repair and replacement, price reduction and refund. Similarly, it should also cover the issue of compensation for damage to device or to other digital content. Onerous agreements should also be excluded. This refers to those terms in the digital content agreements that exclude or restrict liability regarding statutory rights under a digital content contract. For example, a trader cannot restrict or exclude liability arising under the requirement that digital content to be of a satisfactory quality, fit for a particular purpose, fit the consumer’s description etc.

In conclusion, consumers of digital content are under-protected in Kenya. There is an urgent need to revisit, analyse and evaluate our consumer laws to reflect the digital advancements. Playing catch up is repulsive and signifies the immaturity in our legislative curiosity and contemporariness! 

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