08 Sep 2025

Rakhee Dullabh has returned to ENS’ Corporate Commercial Practice, as an Executive in the Technology, Media and Telecommunications team. Rakhee is a seasoned technology and data privacy lawyer, qualified in both South Africa and Australia, with extensive experience in outsourcing, complex technology transactions, and ICT compliance. Her expertise spans across technology contracting, cybersecurity, systems integration projects, electronic communications advise, advertising regulations, and social media. She is also highly skilled in drafting and negotiating commercial and TMT-related agreements.

Rakhee’s data privacy work includes advising clients on compliance with privacy laws, conducting gap analyses, drafting data processing agreements, and delivering training on cyber risks, data breaches, emerging technologies, and artificial intelligence. Her client base includes listed companies, state-owned entities, and multijurisdictional corporations across sectors such as financial services, retail, technology, and resources.

Ridwaan Boda, Head of ENS’ Technology, Media and Telecommunications practice, said: ‘Rakhee’s return strengthens our commitment to delivering forward-thinking, client-focused legal solutions in the technology and data privacy space. We are excited to have Rakhee back and look forward to the impact she will continue to make.’

We welcome Rakhee’s return, confident that her contributions will no doubt strengthen our offering.

The post Rakhee Dullabh returns to ENS’ Corporate Commercial Practice Practice appeared first on intelligENS.

29 August 2023

by Ridwaan Boda, Waldo Steyn and Shaaista Tayob

In July 2023, three independent designers filed a lawsuit in California against Shein, the popular online fashion retailer.  They allege that Shein sold exact copies of their work which infringes their copyright, and which violates the United States Racketeer Influenced and Corrupt Organizations (“RICO”) Act.

The RICO Act was originally put in place to target organised crime, but it also provides for civil action to be taken against “racketeering”, which includes certain acts relating to criminal infringement of copyright.

It was further alleged that Shein has a “secret” algorithm that is utilised to manipulate market data, search results, and unfairly drive out competitors, leading to monopolistic practices. This legal action is important as it will provide a glimpse into the stance that courts may take in the future in regulating AI, as well as assist in the development of recommendations regarding the ethical use of AI systems.

For example, it is alleged that Shein’s algorithms have been programmed to generate false or misleading information on the Shein app regarding product popularity, customer reviews, or pricing trends. By artificially inflating their own performance metrics and suppressing negative feedback, Shein could have created a skewed perception of their products’ desirability and quality.

Such manipulation of market data could have severe implications, including deceiving consumers into making purchasing decisions based on inaccurate or biased information. This not only undermines the trust of consumers but also hampers the ability of competitors to compete on a level playing field. By distorting market data, Shein’s AI algorithms may have affected the purchasing decisions of customers, potentially leading to an unfair advantage for the company.

Therefore, the use of AI algorithms for manipulating market data highlights the potential risks and challenges associated with the deployment of advanced technologies which some commentators argue necessitates the creation of Responsible AI use regulation.

Responsible AI refers to the framework of principles and practices aimed at ensuring the fair and ethical use of AI technologies. By integrating responsible AI practices, organisations can proactively minimise the risk of legal controversies such as the current Shein lawsuit.  Actions that organisations can take include:

• Governance: the board needs to ensure that proper structures are put in place as well as safeguards employed in order to ensure the adoption of Responsible AI. These may include establishing Centres of Excellence, dedicated task teams, and or other structures whose focus is ensuring that AI is adopted in a Responsible manner in keeping with the values and culture of the company and also in order to mitigate legal, technical and financial risk;
• Policy implementation: a sound policy for the adoption of Responsible AI needs to be implemented. These would include not only mechanisms to mitigate legal, technical and financial risk but also ensure that ethical boundaries have been established based on the company’s own value system;
• Training: companies should ensure that staff are trained at various levels and that training be adapted depending on what role staff members undertake as part of the company’s AI initiatives. Example: (i) legal and technical teams should undergo training on more than just the legal and technical risk of AI adoption but also on AI ethics and financial risks; and (ii) board of directors need to be trained on both ethical and legal considerations in order to establish a culture of Responsible AI;
• Contracting: as companies would rely on third-party service providers in order to deploy AI solutions, companies should ensure that they establish sound contracting standards in order to mitigate against the risk of a supplier providing tools and/or solutions which may give rise to claims and such supplier not being liable due to restrictive liability provisions. Further, the usual due diligence in supplier selection needs to also be adopted;
• Ethical impact assessments: Although not mandatory, it is a useful tool to ensure that any projects undertaken or AI being adopted complies with the company’s policies and applicable laws;
• Ethical reviews: as part of this, companies may wish to establish a distinct AI ethics review board, which would also engage in the approval of projects based on ethical impact assessments undertaken.
• Pioneering industry initiatives or codes of conduct: leading companies may wish to pioneer the adoption of industry acceptable codes of conduct, including obtaining approvals from regulatory authorities such as the Information Regulator; and
• Auditing and monitoring: as with any compliance initiative, boards should ensure that proper resources are dedicated to ensuring compliance with interventions adopted, as well as dealing with violates of company policies.

The Shein RICO lawsuit serves as a wake-up call for organisations to adopt responsible AI practices and address the potential legal pitfalls associated with advanced algorithms. By adhering to ethical frameworks and regulations, implementing robust data governance, conducting continuous testing and monitoring, and fostering collaboration and accountability, organisations can mitigate the risks of legal controversies arising from AI technologies. For organisations and boards, who may be grappling with where to begin with implementing Responsible AI, especially in the absence of regulation, our expert team at ENSafrica have developed a Responsible AI Toolkit to help fast-track AI usage and implementation.

Please reach out to our expert team of TMT and IP lawyers for assistance.

Ridwaan Boda
Executive | Head of Technology, Media and Telecommunications
rboda@ENSafrica.com

Waldo Steyn
Executive | Intellectual Property
wsteyn@ENSafrica.com

Shaaista Tayob
Associate| Technology, Media and Telecommunications
stayob@ENSafrica.com

The post Shein’s RICO lawsuit and the role of responsible AI in preventing future legal controversies appeared first on intelligENS.

29 August 2023

by Linda Sheehan and Alexander Powell

As artificial intelligence (“AI”) has become synonymous with innovation and cutting-edge technology, LLM is no longer an abbreviation synonymous with a law student studying a Master of Laws. Large language models (“LLMs”) are a buzzword in the AI space now.

LLMs are a type of AI that assists in generating human-like responses to complex queries. These models have caused the current generative AI boom.  LLMs have been around for almost a decade but recent advances have gained phenomenal and worldwide attention.

We explore the following questions below:

1. Why have LLMs taken the world by storm – is it just hype?
2. How does a business leverage the benefits of LLMs safely and responsibly?
3. What method should a business use to bring AI into its operations – adopt, deploy or develop AI?
4. Who can access sensitive business data – can it end up on the dark web?
5. When can a business rely on the output – can LLMs become a master of the law?

As we explore the potential of leveraging LLMs safely and responsibly within a business, such as change management, AI leadership strategy and how to prepare your information and workforce for an AI-embedded world in our second article, we must also consider the uncertainty of this emerging trend in order to understand the need to implement it cautiously.

1. Why have LLMs taken the world by storm – is it just hype?

Goldman Sachs Research predicts that generative AI “could drive a seven percent (or almost USD7-trillion) increase in global GDP and lift productivity growth by 1.5 percentage points over a 10-year period.” An MIT study conducted across a group of college-educated professionals showed more than a 40% increase in productivity and nearly 20% increase in quality in relation to writing tasks. These statistics alone are enough to make any business take notice. Conversely, more recent studies have shown high percentages of incorrect results emphasising the risks surrounding over-reliance on AI for factual information, especially in fields requiring expertise such as legal.

LLMs have been around for almost a decade. Previously, chatbots relied on decision trees and rule-based coding. The more recent chatbots are based on LLMs that are powered by neural network-based language prediction models built on the transformer architecture. ChatGPT is a LLM powered by generative pre-trained transformers (GPT) that generate coherent and fluent text, making the responses more human-like. Together, they can understand complex information, identify entities and relationships in words, and generate new text that reads like a human wrote it.

These newer models can learn from significantly larger sets of data providing universal application. The general nature of the use cases, from children creating their own bedtime stories to developers fixing code, and various levels of availability to the public at no cost means anyone can interact with it to some degree.

The similarity between Google’s Bard, Meta’s Llama and OpenAI’s GPT chatbots is the user’s ability to type in a query and receive a human-like response. The responses will differ between the chatbots because they have been trained on different models and different datasets.

It has been more than a year since the explosion of generative AI, but there are still many unknowns on the use cases in business. These models may not generate new ideas, but they can free up employee time to do so.

The question is not if LLMs will be incorporated into business, but when and how.

2. How does a business leverage the benefits of LLMs safely and responsibly?

There is uncertainty in how LLMs will be implemented safely and responsibly in business. It may feel more like adventuring into an African overland road trip without a map.

Similar to any emerging technology, there are the skeptics and the early birds. Change management is a critical part of any digital transformation and new technology implementation. A key success criteria for change management involves defining the scope and objectives and creating a clear roadmap.

It is important to understand the risks. Regardless of whether a company deploys or utilises AI technologies in the workplace, it should ensure that it has adopted mechanisms for Responsible AI interventions and that such interventions are led from the very top.

3. What method should a business use to bring AI into its operations – adopt, deploy or develop AI?

There are various options that a business can use to implement and operationalise. Any company seeking to acquire AI capacity should determine its risk appetite and review its policies, such as those on privacy and data retention, to ensure that they are aligned to mitigate the risks associated with incorporating AI in the workplace. Some key challenges include regulating the use of AI and considerations on copyright.

The starting point will be to consider whether a business will adopt, deploy or develop its own AI solution based on its own investment, use case and risk appetite:

• In-house development: This is where a company develops an AI solution internally within its business. Here the company will have full control over the scope of development, application, use, and regulation of the AI solution. It will also have complete ownership over all source/object code and all outputs generated by the AI solution. However, this process can be very costly and companies may not necessarily have the personnel and technical skills required to develop advanced AI solutions.
• Outsourcing development: A company can contract a development company for a bespoke AI solution. The benefits of this approach are similar to that of in-house development. Here, the company as the client of the developer will be able to set out the scope of development, use cases, and the AI’s application. The client company should own all sources/objects provided that the AI solution being developed is bespoke. The problem with this approach is that it is costly and there is a risk of project delays and scope creep. In addition, complexity could arise when a multi-tiered development process is used by the development company. In this development model, the development company would use its own source code or existing AI solution and further develop or customise the solution for the client. In this scenario, it becomes critical that the client retains ownership over any bespoke or customised development.
• Licencing: A company can procure a licence to access and operationalise an AI solution. In this regard, a company will acquire a pre-built AI solution that has already been trained, tested, and refined. The company will not have ownership over the AI solution as it will be owned by the third party that developed it. The problem with this approach is that ownership over data and confidential information becomes problematic as the company will be supplying information to a third party AI solution. This approach also carries with it data privacy and protection concerns. There has been a sharp rise in investment in generative-AI startups. According to Pitchbook , venture funding has risen from USD4.8-billion in 2022 to USD12.7-billion in the first five months of 2023.

This will lead to a multitude of options and an overwhelming number of decisions to make.

4. Who can access sensitive business data – can it end up on the dark web?

Aside from the hype of Google versus OpenAI and concerns around these companies monopolising the LLM market, it is impossible for any business to police this level of access to information. Cyber criminals have always been ahead of the curve in their use of technology and using LLMs is no different.

OpenAI’s ChatGPT is nearing 1-billion users a month. According to Group-IB, 101 134 ChatGPT account credentials were made available on the dark web between June 2022 and May 2023. Almost 25% of these compromised ChatGPT credentials are geographically distributed in Middle East and Africa. There have been many reports of employees’ inadvertently disclosing business sensitive information, including source code development and trade secrets being leaked to OpenAI’s ChatGPT. Alongside the compromised ChatGPT user’s personal information is the saved chat history.  This chat history may now be accessible to cyber criminals and competitors through the dark web.

According to Reuters, Alphabet Inc is cautioning employees about how they use chatbots, including its own Google Bard chatbot. It is advising against entering its confidential materials into AI chatbots, citing long-standing policy on safeguarding information, and the direct use of computer code generated by chatbots.

When using chatbots, even for personal use, educating employees on changing passwords regularly, implementing two-factor authentication and deleting chat history are small ways to mitigate the serious risk of business sensitive data leakage. It is crucial to seek expert guidance to help navigate the complexities of safely adopting, or prohibiting, the use of technology.

We explore the risks concerning cybersecurity, availability and functionality, and data protection in more detail here.

5. When can a business rely on the output – can LLMs become a master of the law?

An LLM’s degree of reliability depends on its use case and the information it has been trained on. After all, an AI model is only as good as the data it is trained on.

There is no doubt that LLMs will greatly assist the legal world. It is also important to consider the guardrails around the use of any output of the tools. Attorneys citing fictitious cases cited by ChatGPT in court filings are well-publicised examples of the importance of understanding the limitations of any new technology.

Even where the AI has not made up information (often referred to as hallucinating), there is still potential harm in adopting its human-like content in a legal context. LLMs are more focused on predicting the next likely word. LLMs have been trained on a vast array of data, not just legal information, so there is a very real risk that it will select a word that is likely to have been used next in a non-legal context as opposed to concentrating on the next likely word a lawyer would have used.

The challenge here is that words are carefully curated by the legal profession. Whether it is a word used in a contractual clause or high court judgment, these words have often been negotiated, argued and defined at great length by legal professionals and the interpretation may vary on a jurisdictional basis. As such, the reliance on LLMs to draft agreements and legal documents could have disastrous, unintended consequences if not reviewed by legal experts.

Overcoming this challenge requires carefully curating an up-to-date and accurate legal data set to train the AI reliably, and a mechanism for its learnings to be updated as and when there are internal policy and procedural, legal and regulatory changes, or otherwise. A model trained on trillions of unvetted pieces of information, including social media, will not provide a reliable output in the drafting of legal documents. The training data must be “cleansed” of bias, refined from repetitive and irrelevant information and considered for privacy compliance, such as anonymising or removing personally identifiable information.

Conclusion

Leaders are faced with a great responsibility to carefully select how AI is integrated within their business. It is not just about defining the appropriate use case and assessing the ethical and secure usage but also the long-term impact it will have on society and future generations.

ENSafrica’s team of expert Technology, Media, and Telecommunications lawyers have developed a Responsible AI toolkit to assist its clients in fast-tracking entry into and navigating the world of AI. Any further questions may be communicated to our team members:

ENSafrica’s legal experts work closely with our in-house technology experts to help businesses start their digital journey and identify specific solutions for their existing problem or value drivers.

We provide some example steps that can be taken now here.

Linda Sheehan
Head of intelligENS
lsheehan@ENSafrica.com

Alexander Powell
Candidate Legal Practitioner | Technology, Media and Telecommunications
apowell@ENSafrica.com

The post With great power comes great responsibility: with great AI comes great intelligENS appeared first on intelligENS.

8 August 2023

by Linda Sheehan and Alexander Powell

We’ve discussed the responsibility of leaders to carefully select how AI is integrated within their business. It is not just about defining the appropriate use case and assessing the ethical and secure usage but also the long-term impact it will have on society and future generations. It can also be fun.

Whilst we are not yet at the stage of fearing AI taking over the world in the way depicted in science fiction movies, our own knowledge is in some way or another being shaped by AI. For example, internet search requests are analysed by AI and the results retrieved are those that AI thinks are most relevant to us.

We set out a list of steps that a business can take to start preparing for an AI-embedded world without making the decision to implement it yet.

A clear AI strategy from leadership is the key – take a cautious approach

A needs analysis can be conducted today. Counterbalancing the very real risks of security breaches and IP loss, businesses must stay competitive. Providing your employees with productivity tools, such as LLMs will no doubt raise the bar in terms of human creativity and faster outputs. The starting point is getting the right minds together to consider the risk and investment appetite.

Building a custom solution internally or in partnership with a vendor can provide the greatest benefit and control over data requirements but incur significant investment. Conversely, using a pre-trained open source or vendor AI model may reduce the costs, but it may not be tailored to your specific needs nor provide the same transparency on how your data is being used.

Five small steps that can be taken now:

• Speak with various stakeholders across different departments to identify any pain points that can be addressed with LLMs.
• Strategise on the options for implementing LLMs in the future and start building relationships with trusted partners.
• Consider how to incorporate ethics into the design process through training on the ethical considerations involved in implementing AI and assessing potential areas of bias to certain groups in the training data and output.
• Consider the current and potential future AI strategy against any large upcoming investments (technology, staffing, retail space).
• Work with LLMs to help brainstorm ideas and draft the generic needs analysis assessment – just don’t tell it any company secrets. Work with in-house and external legal counsel before finalising it.

Small change management steps – because no one likes big changes anyway

Employees will be worried about how it may impact their jobs, whether there is a strategy in place or not. It is often said that employees will not be replaced by AI, but those who have embraced AI will replace employees that have not. When emails replaced posting and faxing, business did not need to replace those employees with experience in mailing letters with those who had skills in emailing. It was a natural change. Some took it up faster than others so reaped the rewards sooner. The same applies to other big disrupters, such as, the internet and video conferencing.

Five small steps that can be taken now:

• Communicate clearly and often about the positive impact AI could have and encourage employees to read about the advancement of AI in their industry.
• Embed other tried and tested technologies into the day-to-day functioning of businesses that are secure.
• Set up an environment for employees to play with LLMs on demo (non-confidential) data to get a view of where it may assist and to help employees familiarise themselves with how it works. Set up processes that enable the analysis of questions being asked by employees to identify the pain points employees are looking to address through LLMs.
• Run interactive games using AI, such as Friday drinks in the Metaverse with prizes for the best avatars, engage employees in creating video content from text about non-confidential matters like holiday planning or create workshops to code games.
• Employees performing tasks that can be easily automated are at the greatest risk. The most creative and agile employees will prosper the most. Consider this when assessing skillsets in new recruitment drives. Another option is to consider outsourcing and flexible workers until the new dawn is clearer.

Preparing for the new dawn – without taking the plunge

Businesses do not need to invest in LLM products for the risks to be real today due to the accessibility on an individual basis. Parallels can be drawn to the usage of other public productivity tools, such as, Google Translate. Employees are still translating sensitive information using free internet tools without any consideration of where that data is being transferred and stored and how it is being used.

To get the best results from tools, such as, ChatGPT you need to be able to ask it the right questions. This is referred to as prompting. Prompt engineering roles in the AI industry attract large salaries demonstrating the crucial role they are anticipated to play in this new dawn.

Three steps that can be taken now:

1. Train your employees and update your policy and procedures – no matter your appetite

It is always critical to provide a clear message to employees on the business’s approach to the usage of public productivity tools. The legal, commercial and reputational risks associated with ChatGPT have resulted in businesses developing and implementing training, monitoring and policies and procedures specific to this tool, including the acceptable and prohibited uses of it. This includes adopting a risk based approach to individual use cases and, in some businesses, removing access to it entirely. However, if a business takes the stance of prohibiting or seriously restricting the use of LLMs in the workplace, it runs the risk of a shadow IT infrastructure emerging with the organisation where employees are use LLM technologies without any knowledge or approval of the company’s relevant stakeholders. Unregulated use of LLMs in the workplace, exponentially increases the company’s risk of cyberattacks and data breaches. Businesses should document an incident response plan and engage the support of external legal counsel.

Legal experts who are working with multiple businesses to protect and help leverage the benefits of new technology will be best placed to provide guidance.

2. Information governance – getting your electronic house in order

According to Wikipedia, “Information governance, or IG, is the overall strategy for information at an organization. Information governance balances the risk that information presents with the value that information provides”.

AI reads and learns from text. If the information you want to train and use it on is in hard copy, saved on desktops or lost in a folder somewhere in your infrastructure, you will not benefit from it. Whether your business is working in the metaverse or using collaboration tools, such as, MS Teams, you are no longer simply checking project folders, emails and hardcopy files in offices to gather your information. When you have multiple forms of business communication channels and need to organise your data, it can be very difficult. It is anticipated that chat messages will soon overtake emails as the most prevalent form of business communication.

Businesses can prepare by focusing on a centralised and organised digital transformation project.

3. Knowledge management – digitising subject matter expertise

AI reads and learns from text. If the information you want to train and use it on is sitting in your former and current employees’ minds, you will not benefit from it. There are various ways to digitise subject matter expertise from creating knowledge repositories to reusable AI models.

The latest role of a “legal engineer” for instance is both technically and legally skilled with the ability to draw information from a non-technical but highly skilled legal professional and translate the subject matter expertise (lawyers) into a variety of digital formats.

In matters, such as disputes, forensic investigations, data breaches and regulatory responses, the legal technology industry has been using AI for many years. This includes creating reusable AI models. On one legal matter, subject matter experts (lawyers, chartered accountants, etc.) train the machine to find helpful and harmful evidence as well as company-wide irrelevant communication (eg, all staff emails, bot mails, junk mail etc.) and then apply the same machine learnings to expedite the identification of evidence on similar, future matters. The ability to train AI to address industry and cultural-specific language, particularly in a diverse continent, such as in Africa, is crucial.

Many AI models have been trained predominantly on general data from the US or Europe. Whether you are training a chatbot to respond in colloquial or technical language or using AI to find relevant evidence across information generated locally, it is imperative that you work with legal engineers who understand your company’s culture, dialect and technical expertise to enhance the performance and quality of the results.

Conclusion

There are still many unknowns. The question is not if LLMs will be incorporated into business, but when and how.

Leaders are faced with a great responsibility to carefully select how AI is integrated within their business. It is not just about defining the appropriate use case and assessing the ethical and secure usage but also the long-term impact it will have on society and future generations.

ENSafrica’s legal experts work closely with our in-house technology experts to help businesses start their digital journey.

Linda Sheehan
Head of intelligENS
lsheehan@ENSafrica.com

Alexander Powell
Candidate Legal Practitioner | Technology, Media and Telecommunications
apowell@ENSafrica.com

The post Preparing for an AI-embedded world appeared first on intelligENS.

29 August 2023

by Linda Sheehan

As the hybrid world of remote and in-person working has been normalised, some businesses are hosting events and conferences using 3D and digital avatars to provide a more interactive space to meet with colleagues and entertain clients. The concept of the metaverse is not formally defined but is generally accepted to include this type of virtual reality. It is not yet clear whether the metaverse is a passing phase or the future way of doing business.

A business working in the metaverse or starting its journey with the use of collaborative tools is creating digital information at an exponential rate. As we have discussed in our recent article there is great value to be derived from getting its electronic house in order and digitising subject matter expertise, such as curating training sets for generative AI for investing in the future.

Conversely, by expanding its digital world and business footprint into a spider web of complexity, meeting the regulatory needs to organise and label data becomes increasingly difficult. When there are multiple forms of business communication channels, businesses are no longer simply checking project folders, emails and hardcopy files in offices to respond to information requests. It becomes imperative to know where information resides in responding to regulatory and compliance requirements timeously.

Here are some of the key scenarios when knowing where your data resides becomes time critical:

• Dawn raids – by its very nature, on an unexpected morning, a business may need to advise regulators on where information potentially relevant to their investigation resides to prevent an overinclusive raid of its premises and infrastructure.
• Cyber breach – criminals may lock a business out of its own data meaning it is unable to assess what data has been stolen, making it very difficult to comply with data privacy rules, such as, notification to those individuals or entities that may have been impacted by the breach.
• Data subject access request – there is a very short timeline to respond to a request from a data subject to provide all information held about them.
• Litigation – failure to preserve in place information that may become relevant to the litigation can result in adverse findings being drawn. A successful negotiation or court outcome often hinges on factual evidence and could mean that you are not in the best position to negotiate or defend your position if you can’t find, or weren’t aware of, that piece of evidence to support your case.
• Forensic investigation – once a bad player gets wind of an investigation they will do everything in their power to delete any evidence of wrongdoing.

The next business challenge is identifying personal information within its data and the decision on whether it requires data anonymisation or redaction. This is a complex topic and depends on the use case for the data set. Typically, data anonymisation is used when a business wants to derive value from its data for business analysis purposes and data redaction is used when a business is handing over data to a third party in response to a regulatory or compliance requirement.

In general, data anonymisation hides personal information in data sets to protect businesses from non-compliance with data privacy rules when transferring data cross-border or utilising a data set for purposes that it was not originally processed, for example, curating an AI training set or aggregating information about its employees. There are many different ways to hide information, including encrypting or de-identifying the personal information through patterns and term shuffling. It may be done automatically on live data, a specific subset of data or a cloned copy of a dataset.

Data redaction, often confused with data anonymisation, is the process of completely removing personal information from a data set. The old-fashioned data redaction process involved a human physically drawing a line over words on a physical document with a black marker pen. This was very time consuming and fraught with risk of inaccuracy or not colouring within the lines properly. The modern processes incorporate automated identification and redaction of information through Natural Language Processing (NLP) and Named Entity Recognition (NER). Simply put, AI is trained to find and brand the personal information by applying a digital version of a black line.

The most common theme is in the identification of personal information in large volumes of information:

• A cyber breach often results in a review of the potentially leaked documents. The key focus is to find and extract personal information in order to meet stringent notification requirements and to assist the business in identifying and assessing the risk to the business.
• A key part of the response to a DSAR is anonymising privileged and sensitive information before handing information to a third party.
• In litigation, parties are required to exchange documents that they hold that are relevant to the dispute as part of the discovery process, typically using an eDiscovery document review platform. It is important to redact information between a business and its lawyers. For example, an email partially containing legal advice to the business that falls under a category of legal privilege.
• In mergers and acquisitions, the seller shares data with the buyer(s) typically in a virtual data room. It is important to strike a balance between providing necessary information to get the best deal alongside any legal requirements to protect information. Typically, the redaction of sensitive information relates to personally identifiable information and business confidential information.

AI tools can scan and process vast amounts of data looking for the precise types of data that trigger notification obligations and sensitive data protection. intelligENS has built custom AI-powered models tailored specifically to the unique African market and covers nuances, such as the requirement to scan for business personal information in South Africa and the fact that a lot of information is not fully electronic.

Speak to our team if you would like to know more about legal and compliance readiness.

Linda Sheehan
Head of intelligENS
lsheehan@ENSafrica.com

The post Back to basics – where in the world is my data and how do I protect it? appeared first on intelligENS.

28 August 2023

by Isaivan Naidoo and Kayla Casillo

As the global economy grapples with instability, contracting may become a daunting thought especially when it comes to commercial and legal risk appetite. This article highlights some of the main considerations that companies should take into account when wanting to reduce commercial and legal risk exposure under existing contracts, or when intending to conclude IT contracts that have a lower risk profile, to accommodate any financial constraints the company may be experiencing as a result of the current state of the economy.

If a company is looking to tailor its existing contracts to accommodate financial demands or instability, it should review its existing contracts and consider the following contractual mechanisms for reducing its risk exposure:

1. Scope of services: In a master or framework agreement, where multiple service schedules or statements of work are concluded, it may be possible for a company to terminate or reduce the scope of one service without impacting the other services being provided. Such termination or scope reduction may be for various reasons, including a change in demand or financial constraints.
2. Change control procedures: A change control procedure is a mechanism generally built into contracts which makes provision for changes or amendments to the services procured (such as the pricing model, increases or reductions in charges, pricing fluctuations, the scope of services, performance metrics, and the like). Using the change control procedure pursuant to the terms of the existing contract, the company may have the flexibility to renegotiate service or commercial-related contractual terms to accommodate any changes in demand or commercial constraints experienced by the company.
3. Termination provisions: Certain contracts may contain termination for convenience provisions that enable a customer to terminate the contract without cause. Such termination is usually not without liability. Typically, parties to the contract agree on an early termination fee should termination for convenience be exercised. However, the threat of termination for convenience may have the effect of bringing the supplier to the negotiating table in order to prevent the complete loss of its projected revenue under the contract in question.
4. Benchmarking exercises: In outsourcing agreements that hold a lengthy contractual duration, benchmarking may be necessary to ensure that the service provider is not overcharging in comparison to the charges that would be payable to competitors in the industry. Conducting a benchmarking activity may assist in reducing the charges payable to the company’s existing supplier, although this is dependent on the terms applicable to the benchmarking exercise. For instance does the contract force the supplier to reduce the costs to align with the benchmarker’s finding.
5. Waivers: Waivers can be used by the customer to relinquish or reduce service levels or certain onerous provisions which may not be required any longer. In this case, such a reduction could lead to the supplier reducing its fee based on the reduced risk such requirements posed.
6. Invoicing: In most cases, you will find a customer will only pay a supplier after 90 to 120 days after receipt of an invoice. The customer could seek to reduce this time period to ensure payment within 30 to 45 days after receipt of the invoice. This may allow for alleviation of any cashflow on the supplier’s side and /or may lead to the supplier passing on some form of commercial benefit such as a reduction or discount on the service fees.

On the other hand, if an unstable economy prevents the company from entering into new contracts with IT suppliers as a means to reduce costs and risk exposure then, instead of suspending the company’s contractual plans and service goals for the financial year or future, the company should firstly conduct a thorough risk assessment, including an evaluation of the company’s financial health, and the solvency, track record and stability of the potential service provider, as well as assessing whether the service is core to the company’s requirements and needs and the risks associated with using such services. Once the company has conducted its risk assessment and selected its preferred service provider, it should consider negotiating flexible contractual terms and low-risk positions throughout its contract to allow for flexibility, including:

1. Currency fluctuations: Currency conversions are directly impacted by financially unstable economies. To mitigate this risk, companies should negotiate a fixed currency conversion or a range of currency conversions to ensure stability within the contract, or alternatively, include clauses that make provision for potential currency fluctuations.
2. Payment terms: For purposes of ensuring the continued fulfilment of a company’s payment obligations, shorter payment terms, advance payments, interval payments, or better yet, fixed-priced contracts, can be negotiated.
3. Service levels and credits: To ensure that the quality of services the company is receiving remains consistent in the face of economic instability, the company will benefit from only negotiating the necessary service levels required for the service and not requesting “nice to haves”.
4. Termination clauses: A well-drafted and clear termination clause may provide a legal way out of the contract if the supplier undergoes, or is likely to undergo, an event of insolvency. These termination clauses typically allow a customer to terminate the contract without liability where the supplier is insolvent or may provisionally be insolvent.
5. Liability and insurance: Liability clauses are one of the most material legal clauses in a contract as they could serve to expose the company to risk and liability that it would not ordinarily assume under law. The liability provisions should seek to reduce the company’s liability exposure, especially where a claim arises.
6. Force majeure: Force majeure clauses protect both contracting parties in the event of unforeseen or unanticipated circumstances that are beyond their control, such as an economic crisis, sanctions and embargos. This clause makes provision for the party experiencing a force majeure from under-performing, or a failure to perform, for a specified period until such time as performance is rendered impossible under the circumstances, thus generally giving rise to termination of the contract or alternative rights (such as step-in rights) being available to the other contracting party.
7. Internal alignment: To ensure the successful fulfilment of a company’s contractual obligations, it is critical that the technical, operational, commercial and legal teams of the company are aligned on the company’s strategy. Internal alignment is critical to the success of negotiating a low-risk and flexible contract that accommodates the company’s business requirements and strategy under conditions of economic instability.
8. Data security: Data security is a critical issue in IT contracts, and companies should ensure that their contracts impose adequate data security and protection measures regardless of the economic environment.
9. Government regulations and compliance: Governments may enact new regulations or policies to accommodate the country’s financial instability. Therefore, your contractual terms must be flexible enough to allow for any changes in law, regulation or policies imposed by the government or regulatory authorities.
10. Dispute resolution mechanism: Financial instability may prevent or delay performance under a contract, which increases the likelihood of disputes. Retaining a robust dispute resolution mechanism in the contract is crucial, which could include alternative dispute resolution mechanisms such as amicable settlement, arbitration, mediation, or otherwise court litigation provisions.

While the above considerations may help to mitigate the risks associated with IT contracts in an unstable economy, there is no one size fits all approach and it is more important to consider each transaction on a case-by-case basis. Our TMT law experts have assisted many clients with navigating their existing contractual rights and remedies and drafting new contracts which cater to complex and risky situations.

Isaivan Naidoo
Executive | Technology, Media and Telecommunications
inaidoo@ensafrica.com

Kayla Casillo
Senior Associate | Technology, Media and Telecommunications
kcasillo@ensafrica.com

The post Women’s Month ENSights appeared first on intelligENS.

25 August 2023

by Isaivan Naidoo and Kayla Casillo

ENS has once again been acknowledged for exceptional expertise in the latest release of the World Tax and Transfer Pricing rankings.

The collaboration between the World Tax and the International Tax Review annually yields rankings that spotlight the most distinguished tax practitioners and firms globally.

We have garnered 10 firm rankings across five African jurisdictions, including:

• South Africa:
  • Transfer pricing | Tier 1
  • General corporate tax | Tier 1
  • Tax controversy | Tier 1
  • Transactional Tax | Tier 1
• Mauritius
  • General Tax | Tier 1
  • Tax Controversy | Tier 1
• Rwanda
  • Recommended law firm
• Uganda
  • Recommended law firm
• Ghana
  • Transfer pricing | Tier 1
  • General Tax | Tier 2

A number of our tax experts were also top ranked:

• South Africa
  • Peter Dachs Notable practitioner
  • Andries Myburgh | Highly Regarded | General Corporate Tax as well as Highly Regarded | Tax Controversy
  • Charles de Wet | Highly Regarded | Indirect Tax
  • Jens Brodbeck | Highly regarded | Transfer Pricing
  • Kristel van Rensburg | Highly Regarded | General Corporate Tax
  • Robert Gad | Highly Regarded | Indirect Tax
• Ghana
  • Cletus Banseh| Rising Star | General Corporate Tax
  • Paa Kwesi Morrison | Highly Regarded | General Corporate Tax
• Mauritius
  • Shrivan Dabee | Highly Regarded | Tax Controversy

We are grateful to our clients for their continued support. We are committed to providing you with world class advice.

The post ENS recognised by the World Tax and Transfer Pricing in the 2024 edition appeared first on intelligENS.

24 August 2023

For the 9^th consecutive year, our firm has once again been recognised by the India Business Law Journal (IBLJ) as one of the notable international law firms for India-related work in 2023. This remarkable achievement is a result of the support that our firm has received from our clients for which we are grateful.

Positioned in the Regional and Specialist category, we remain one of the select few firms in Africa to hold this prestigious distinction, reaffirming our eminence for India-related work.

This accolade is an outcome of IBLJ’s 17th annual survey, a rigorous process involving extensive consultations with India-focused corporate counsel and partners at Indian law firms globally. This comprehensive approach, sustained by submissions from numerous international law firms, alongside meticulous interviews and research by IBLJ’s editorial team, underscores our exceptional standing.

We congratulate our India experts, Sanjay Kassen, Mohamed Darsot, and Thierry Koenig, whose leadership of our India practice is a driving force that leads us to receive recognition as a leading international law firm in India-related matters.

As we continue our journey, we remain committed to servicing our clients and helping them find innovative solutions to solve the many challenges that they confront.

Read the full report here.

The post Celebrating our 9th consecutive year as a leading International Law Firm for India Work, recognised by India Business Law Journal appeared first on intelligENS.

22 August 2023

by Natasha Wagiet

“If you take away land from women in the rural areas, you take away their livelihoods; you take away the very thing that they identify with. We fight. Because we have nothing else to lose.” – Zimbabwean activist Melania Chiponda

Warmer temperatures, increased droughts, loss of species, severe storms, food scarcity, health risks, poverty and forced displacement of vulnerable people have been increasing and are often directly linked to climate change.

It’s also becoming increasingly apparent that the impacts of climate change are not the same for men and women. Women, particularly in the developing world and in rural areas, are more vulnerable than their male counterparts. They are more likely to live in poverty conditions, and, although they predominate the world’s food production, they own less than 10% of the world’s land. They are also more reliant on the land and natural resources for their livelihood and they have less access to resources such as land, education, and skills training compared to men. This makes them less equipped to deal effectively with the impacts of climate change and to implement essential changes to mitigate its negative effects. Women also occupy far fewer leadership roles compared to men, excluding them from decision-making or having input on strategies to minimise the devastating effects of climate change. It is ironic that those most affected are not afforded a voice nor do they occupy roles where key strategic decisions are taken.

The effects of climate change are also often felt more acutely by women due to their traditional role in society. Largely home-based (particularly in developing and rural areas) women are tasked with a larger share of the mammoth task of securing living conditions and looking after children and the elderly. During extreme weather patterns such as droughts and floods, women tend to work more to secure the household. They may have to travel further (often by foot) to access water and viable food supplies, exposing them to danger. These burdens leave little time for women to access education, and develop skills that will enable them to earn and thrive in the 21^st Century.

Climate change is arguably the most pressing struggle we face in the 21^st Century, Women need to be at the forefront of decision making and be a key player in all aspects related to addressing the challenges posed by climate change. The sector of society facing the most devastating effects of climate change needs to be part of any solution devised. While climate change affects each one of us, it is evident that climate change is indeed not gender neutral.  Vulnerable women are disproportionately negatively affected by climate change. All interventions thus need women at its core.

“Never before in history have human beings been called on to act collectively in defence of the Earth.” – Desmond Tutu

The time is now, we are close to the clock striking midnight and thus we need to work collectively and inclusively to overcome this most pressing challenge.

Natasha Wagiet

Pro Bono Manager

nwagiet@ENSafrica.com

The post Is climate change gender neutral? appeared first on intelligENS.

22 August 2023

by Wayne Rukero

Experts estimate that globally, USD100-billion of climate finance is being lost through a lack of accountability, transparency and participation per year. As such, there is growing public demand for access to information relating to the Namibian Government and its role in just renewable energy and green hydrogen projects. It is also vital for development finance institutions, institutional investors, governments and developers to pull together and upscale conversations around green accountability.

Global spend on climate change is nearing USD2.4-trillion annually and so high standards of accountability and transparency are essential to avoid corruption and mismanagement and to ramp up the just renewable energy and green hydrogen industry. In addition, to optimise the benefit of investments into the green economy, transparency, equity, and inclusion must be at the heart of renewable energy and green hydrogen finance decision-making.

Conceptualising green accountability

Green accountability is an approach that creates systemic ways for people to have a voice and role in just renewable energy and green hydrogen related decisions that most affect their lives. It places citizens and civil society at the heart of just renewable energy and green hydrogen finance to direct funding, implement solutions and hold decision-makers accountable for effective and equitable finance and action. It is a process through which communities on the front lines of the climate crisis can co-create and oversee climate prevention, mitigation and adaptation efforts; reduce corruption in climate-related programming; and ensure greater inclusion and equity within their societies.

The basis for a more coherent green accountability framework exists in the Paris Agreement. It enshrines the principles of country ownership, transparency, and public participation, and recognises the rights of indigenous peoples, local communities and vulnerable groups, as well as gender equality. Article 13 of the Agreement establishes an Enhanced Transparency Framework to build trust among parties and promote effective implementation, providing the ability to track progress towards climate goals. However, this does not go far enough in terms of putting in place broad, global standards for accountability, monitoring the transparency of climate finance or ensuring meaningful participation of communities in this process.

Creating systems for accountable green finance

Ideally, financing of just renewable energy and green hydrogen projects should not only succeed in reducing carbon emissions. It ought also to address inequality and exclusion. By adopting a joint approach that considers both the supply and demand side of governance, carbon emissions may be reduced, resilience ignited, and a way paved for more inclusive and sustainable growth. Civil society could also play a crucial role in co-creating systems for accountable just renewable energy and green hydrogen finance. 

A participatory and transparent architecture for just renewable energy and green hydrogen finance that truly puts people at the centre of the energy transition agenda is therefore essential. It has been known that in times past, large sudden in-flows of financing, such as those following oil discoveries have often failed to benefit vulnerable communities and led to increased capture and corruption (the so-called “resource curse”). Thus, through effective monitoring and green accountability, the mistakes of the old can and should now be avoided.

Alternate accountability frameworks in Namibia

In terms of the Harambee Prosperity Plan (2021 to 2025), the Namibian President has indicated that accountability and transparency are one of the five pillars of effective governance in Namibia. Moreover, in the national Vision 2030, a policy framework for the long-term socio-economic development of the country, good governance, accountability and transparency are marked as chief cornerstones for creating an enabling environment for sustainable development in Namibia.

From a constitutional standpoint, the Public Service Commission and the Office of the Ombudsman are in place. Both these offices are important administrative and democratic safeguards. If implemented effectively, they could enhance accountability and openness in government as far as it relates to the financing of just renewable energy and green hydrogen projects. In particular, the Office of the Ombudsman was specifically created to promote administrative accountability in the public service.

However, it must be noted that the progressive Access to Information Act, 2022 has not become fully operational yet. That may be a cause of complacency on the part of government and government officials for not proactively and promptly making information available relating to just renewable energy and green hydrogen related projects. As such, green accountability remains a rather novel concept in ordinary Namibian parlance with no specific guiding policy framework in place at present.

Reviewed by Jessica Blumenthal, an Executive in ENS’ Banking and Finance practice.

Wayne Rukero
Associate | Namibia
wrukero@ENSafrica.com

The post Green Accountability: A crucial yardstick for making the Green Economy work appeared first on intelligENS.