Read time: 3 minutes

Can Africa benefit from Europe’s digital future?

By , Partner and Head of Baker McKenzie’s Technology, Media and Telecommunications Industry Group
Africa , 30 Mar 2020
Janet Mackenzie, Partner and Head of Baker McKenzie’s Technology, Media and Telecommunications Industry Group.
Janet Mackenzie, Partner and Head of Baker McKenzie’s Technology, Media and Telecommunications Industry Group.

The European Commission unveiled its Data Strategy and White Paper on Artificial Intelligence, which it noted were the first pillars of its new digital strategy. At the time of unveiling, the Commission stated that the European strategy for data aimed at creating a single market for data that would ensure Europe’s global competitiveness and data sovereignty.

The EU Commission’s White Paper on its data and AI strategies is important and worth noting in the African context because many countries will refer to the EU for guidelines that can be adapted when developing their own digital policies.

In Africa, the draft Digital Transformation Strategy for Africa outlines the African Union’s (AU) vision for a unified digital market across Africa. The AU’s digital strategy will therefore focus on pulling together regional efforts to strengthen technical capabilities and build digital economies in much the same way as the EU has done.

As such, the AU will most likely look to the EU for guidance on ways to implement a harmonised, cross-border digital strategy as well as regulations that are applicable to all member states in the Union.

Currently, Africa’s ICT sector remains under-developed due to poor access to electricity, infrastructure and low broadband penetration, but demand has increased and suppliers are adapting. Some countries in Africa have already taken a positive stance in terms of implementing and updating their legal frameworks, looking at how best to regulate the increasing demand for ICT products and services, including overseeing the use of data and artificial intelligence.

Other countries, meanwhile, have adopted a wait and see approach. An overriding legislative framework for the rapidly developing technology sector is desperately needed across the continent in order for Africa to be in a position to make the most of the opportunities presented by the fourth industrial revolution economy. The EU White Paper and related policy should provide useful guidelines for the AU’s digital strategy.

Regulating AI

Raffaele Giarda, Global Chair of Baker McKenzie’s Technology, Media & Telecommunications Industry Group explains that with its White Paper, the European Commission aims to set the path forward for regulating AI, which it rightly describes as one of the most important applications of the data economy.

“The Commission does not yet propose specific legislation, nor does it answer as yet the pressing and complex questions such as who should be responsible for harm caused through AI and how to ensure the regulatory framework is sufficiently flexible to accommodate further technological progress while providing the much needed legal certainty. While the European Commission undoubtedly aims to build a clear European regulatory framework for AI (rather than a fragmented country-by-country approach), it takes the view that it is premature to propose specific rules at this stage and instead opens a public consultation giving business and other stakeholders the opportunity to help shape a future AI governance framework.

“It will come as good news to business that in its White Paper the European Commission frequently highlights the fact that AI, and technology in general, are a force for good and critical enabler in solving some of the world's most pressing challenges, such as the fight against climate change.

Addressing facial recognition

Giarda continues: “The White Paper specifically addresses the use of facial recognition technology in public spaces which, in recent months, has attracted much attention by the media, governments, regulators and the general public as a result of new uses of the technology proliferating with limited oversight. Recognising that numerous socially beneficial use cases exist for this technology - think of its potential to increase security in public spaces through responsible use by law enforcement - the European Commission categorically considers it high-risk because of the significant risk it poses to human rights and civil liberties.

She notes that there is no mention of the previously discussed policy measure of a temporary moratorium. But rather than charting a clear way forward for this technology, the Commission foreshadows a broad European debate on, firstly, the specific circumstances, if any, which might justify the technology's use in public spaces, and secondly common safeguards.

“Looking beyond Europe, different regions are at different stages of the debate around facial recognition technology, notes Giarda.

Data strategy

Raul Rubio, IT & Communications Partner at Baker McKenzie in Madrid explains that the recent publication of EU Commission's Data and AI strategies stands out for its holistic approach. Both set of documents are part of the digital strategy of the EU and they do not address the different issues isolated, but within a strategy to promote digital transformation along with other EU objectives such as climate-neutrality. They intend to help and boost technological development but focusing on the benefits for people and the compliance with fundamental rights.

“The Data strategy does not only focus of the regulatory framework of data and also highlights the need of having and developing next-generation technologies and infrastructures as well as digital skills. It is also interesting, the sectorial approach by promoting the development of common data spaces in strategic economic sectors (health, mobility, etc.) In the AI strategy, we can highlight the human centric approach based on establishing rules and requirements for the purpose of enhancing the trust of users in Artificial Intelligence. The distinction between high-risk and no-high risk Artificial Intelligence applications also serves to have a useful guideline for companies when implementing Artificial Intelligence and to deal in a proper way with the risks associate with the implementation of Artificial Intelligence,” explains Rubio.

EU – a key role to play

Yann Padova, IT & Communications Partner in Paris adds that in the context of both permanent innovation and international competition between the legal systems, Europe has a key role to play to become a genuine third player in the digital world, notably on the ethical issues raised by AI and innovation. To that end, Europe has to design a path that would favour more data usage and data sharing (both personal and non-personal) but in a responsible, accountable and transparent way.

“Europe can show the way and lead towards a genuine and accountable regulation of AI, innovation and data sharing with robust safeguards. Instead of a proposal for a new legal framework, the Commission releases White Papers, more flexible and adaptable. And Europe has already a sound legal framework to build on: the GDPR. Its current assessment by the Commission which will release its report in May will be of critical importance. Indeed, it will have to be well articulated with this new initiative and its ambition in order to provide visibility and clarity to all stakeholders and to European citizens,” Padova says.

Daily newsletter