Towards a data transfer agreement for the South African research community: The empowerment approach

• Jurisdiction: South Africa
• Date: 01 April 2023
• Pages: 13-18
• Author: L Swales,M Botes,D Donnelly,D Thaldar
• Published date: 01 April 2023
• DOI: 10.7196/SAJBL.2023.v16i1.827

April 2023, Vol. 16, No. 1 SAJBL 13

ARTICLE

In the scientific research context, it is trite that data are enormously

valuable in advancing solutions to various health problems.

Therefore, cross-border data transfers are increasingly becoming

the norm, rather than the exception. However, how should South

African (SA) data providers ensure that such data sharing is done on

fair terms, and that their reasonable interests are legally protected?

One apparent answer is a data transfer agreement (DTA). Typically,

a DTA is a written agreement that regulates the lawful transfer of

data between a provider and a recipient by setting out, inter alia: the

purpose of the agreement; the obligations on each party; the term,

ownership and intellectual property; and other critical boilerplate

legal provisions. But instructing an attorney to draft a DTA for every

data transfer transaction is an expensive exercise. Moreover, the

field of data protection is becoming increasingly specialised. There

is a myriad of local, regional and international laws that apply to

data transfers,[1] which makes it increasingly challenging for SA data

providers to comply with the law. Here, government – or any civil

society organisation – can assist by developing a top-quality DTA

template and making it available to the research community to use.

In this article, we firstly provide some background on the topic of a

DTA template for SA. We then engage with the fundamental question

of how such an envisioned DTA template should be operationalised.

We suggest a paradigm shift away from the regulatory approach

taken with the material transfer agreement (MTA) that the SA Minister

of Health promulgated in 2018 (SA MTA).[2] While the regulatory

approach entails a single ‘solution’ that is made mandatory for all, we

suggest an empowerment approach, on which we elaborate in this

article. We also make an initial foray into the content suitable for a

DTA template in the SA context.

Background

The idea of a national template to regulate data transfers containing

standard data protection provisions to assist the SA research

community is not a novel idea. Most prominently, in 2018, Mahomed,[3]

in her doctoral thesis, suggested that the material transfer agreement

(MTA) that she developed can be used nationally as a template.

This MTA included data-related provisions. Later the same year,

the SA Minister of Health promulgated the SA MTA – based almost

entirely on the MTA developed by Mahomed. The minister’s action

to promulgate the SA MTA was over-hasty and ill-advised. There

was no prior public consultation that could have proved essential in

ironing out issues with the SA MTA’s content. For example, the SA MTA

provides that once the agreement becomes effective, the material

that is the subject of the agreement is deemed to be transferred by

the provider and accepted by the recipient– irrespective of whether

the material was in fact transferred and accepted– hence creating

a potentially problematic legal fiction.[4,5] From a practical legal

perspective, this is an obvious issue that could have been pointed

out to the minister, had he only consulted before promulgating the

SA MTA. Furthermore, it has been highlighted in the literature that the

SA MTA is in conflict with other pieces of legislation administered by

the Minister of Health.[6-9]

This open-access article is distributed under

Creative Commons licence CC-BY-NC 4.0.

Towards a data transfer agreement for the South African

research community: The empowerment approach

L Swales,1 PhD; M Botes,1,2 LLD; D Donnelly,1 PhD, D Thaldar,1,3 PhD

1 School of Law, College of Law and Management Studies, University of KwaZulu-Natal, Durban, South Africa

2 SnT Centre for Security, Reliability and Trust, University of Luxembourg, Luxembourg

3 Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, Harvard Law School, Cambridge, USA

Corresponding author: L Swales (SwalesL@ukzn.ac.za)

The idea of a data transfer agreement (DTA) template for the South African (SA) research community is receiving increasing attention. While

developing such a DTA template is certainly a worthwhile project, questions regarding the project’s practical execution should be addressed,

including how to best operationalise the envisioned DTA template, and the content of the envisioned DTA template. It is proposed that an

empowerment approach be followed in operationalising the envisioned DTA template, which is contrasted with the regulatory approach

followed with the material transfer agreement that the Minister of Health promulgated in 2018. While the regulatory approach would entail

government making the use of the envisioned DTA template compulsory regardless of the quality of such a template, the empowerment

approach, by contrast, entails a focus on developing a high-quality, professionally drafted DTA template for the SA research community and

making the use thereof a matter of own choice. Regarding the content of the envisioned DTA template, four hot-button content provisions

are analysed, and it is argued that SA research institutions and researchers should be empowered to: (i) have clarity and legal certainty

regarding their ownership of data, where relevant; (ii) be able to commercialise their research findings without unnecessary contractual

constraints; (iii) avoid falling into the trap of unlawful benefit sharing with research participants; and (iv) be aware that their legal role as

responsible parties, where relevant, cannot be contracted out via a DTA.

S Afr J Bioethics Law 2023;16(1):e827. https://doi.org/10.7196/SAJBL.2023.v16i1.827