1

MZUMBE UNIVERSITY

FACULTY OF LAW

NAME: JACOB MOGENDI

REG.NO: 10254/T.09

TOPIC:

Enforcing Confidentiality Clauses in Tanzania; a Critical Analysis of

the Legal Challenges Facing Employers and Employees

SUPERVISOR: MRS. MWAJUMA KADILU, ADVOCATE.

A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE

REQUIREMENTS FOR THE AWARD OF BACHELOR OF LAWS (LL.B) DEGREE

OF MZUMBE UNIVERSITY.

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Certification

I, the undersigned, certify that we have read and hereby recommend for acceptance by

the Mzumbe University, a research entitled Enforcing Confidentiality Clauses in

Tanzania; a Critical Analysis of the Legal Challenges Facing Employers and

employees, in partial/fulfillment of the requirements for award of the Bachelor of Laws

of Mzumbe University.

Signature

___________________________

Supervisor

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Declaration

I, Jacob Mogendi, declare that this Research is my own original work and that it has not

been presented and will not be presented to any other university for a similar or any

other degree award.

Signature ___________________________

Date________________________________

Copyright

This Research is a copyright material protected under the Berne Convention, the

Copyright and Neighboring Rights Act [Cap 218 RE: 2002] and other international and

national enactments, in that behalf, on intellectual property. It may not be reproduced by

any means in full or in part, except for short extracts in fair dealings, for research or

private study, critical scholarly review or discourse with an acknowledgement, without

the written permission of Mzumbe University, on behalf of the author.

Copyright © 2012 Jacob Mogendi

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Acknowledgement

Completion of this work has been possible due to effort and assistance from a number of

persons. And therefore I wish to expressly acknowledge the assistance I got when

undertaking this research, the assistance without which my work would have been

relatively impossible. First of all I thank the Almighty God for keeping me alive and

healthy.

My warm thanks are due to my supervisor, distinguished member of Mzumbe University

–Faculty of Law and a member of Tanzania Bar –Mrs. Mwajuma Kadilu, Advocate, for

her guidance and excellent assistance in the research preparation and completion of this

work. Many stimulating discussion, constructive criticism and comments about this

study have contributed to the final shape and content of this work. However, I am solely

responsible for the contents or error in this work.

I am much obliged to Vice Commissioner for Labor- Ministry of Employment and

Labor Mr.Josephat Lugakingira for accepting my field attachment application despite

the delay of application, the great appreciation to resident labor commissioner - Temeke

Labor Office Rene Nkaya who assigned me to Miss Agnes Shio ,Advocate, Labour

Officer to work with me , I cannot deny the great role that she played to the availability

of the data that I got, she showed me practical means to get data and exposed me to

important people for data that were needed.

I am extremely grateful for Mr. Innocent L. Mgeta a distinguished member Faculty of

Law Mzumbe University for his advice and material assistance.

I am indebted to many friends, colleagues, teachers, librarians and others for their help

during my study. Their kindness and support are too numerous to list here. I feel obliged

to thank Airtel TZ the former Zain TZ, working with the company drew my

understanding a lot and added my practical experience at work which at last helped me

to secure this comprehensive research. I thank the company management and all my

colleagues in general. Finally I owe the greatest debt to my family members especially

Felister Nyanchini, Pius Nyanchini and Flora Mogendi to mention few.

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Dedication

Dedicated to my beloved mother Felister N Jacob and those who afforded me the rare

opportunity to consider to contemplate and to chronicle my view of this area of law.

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List of Abbreviations

ADV- Advocate.

AIDS - Acquired Immuno Deficiency Syndrome

ATE - Association of Tanzania Employers

BP - British Petroleum

CRDB - Commercial Rural Development Bank

HIV- Hummane Immuno Virus

ICC - International Criminal Court

ICCPR- International Covenant on Civil and Political Rights

ICT Information Communication Technology

ILO- International Labour Organization

IT- Information Technology

NGO‘s - Non Government Organization‘s

OECD- Organization for Economic Cooperation and Development

TRIP—Trade Related Aspects of Intellectual Property Rights

U.K - United Kingdom

U.S.A – United States of America

UDHR- Universal Declaration of Human Rights

URT - United Republic of Tanzania

WHO-World Health Organization

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ABSTRACT

The problem of confidentiality clauses enforcement is critical nowadays. The problem

has been intensified by the computer technology and use.It is difficult to notice how our

dependencies are moving from the real world to the digitally networked world. Despite

number of enactments still there are legal challenges Facing Employers and Employees

in enforcing Confidentiality Clauses one of which being Identification of defendant.

The Objectives of this research were to know; the methods used by the employees or

employers associated in leaking the confidentiality clauses ,the means used by

employers and employees to avoid the breach of confidentiality clauses ,the means used

by employers and employees to keep confidential information, the legal challenges

facing employees and employers on the breach of confidentiality clauses, The legal

challenges brought by computer use at work place on the aspect of confidentiality

clauses also to investigate the causes for the breach of the confidentiality clauses and to

explore the reasonable penalties to be imposed.

This research was preceded by the following hypothesis;

That, the penalties imposed do not suffice /That, the law enforcers have little knowledge

on the aspect of confidentiality clauses /That, the breach of confidentiality clause is due

to unethical actions of the employers and employees/That, the increase use of computer

and internet, increases the breach of confidentiality clauses.

The research was planned to be purely doctrinal, however, during the course of research

the researcher found necessary to supplement findings by having information

Magistrates, Judges, Advocates, Human Rights Activist, Law teachers, Employers,

Trade unions officials, Information and communication Technology experts, employees

and International Organization Officials example International Labour Organization

(ILO)

In relation to library research, primary and secondary sources were obtained for the

purpose of this study. Various legislation both principal and subsidiary cases reported

were dealt with.

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The researcher used qualitative method to analyze data. This was useful to enable the

researcher to interpret data collected and finally make conclusion and recommendations.

Findings from the research inter alia shows that, penalties under different laws covering

confidentiality clauses are not sufficient also the knowledge of confidential information

sensitivity is not well fed to employees again the most of the methods of keeping data do

not comply with the current social change . This is due to the continuance of the problem

and means used to divulge confidential information like unauthorized interception on

computer.

It is concluded that, the use of computer properly is of vital advantage however the

opposite can be of great disadvantage to other party. The best computer programs should

be for the protection of confidential information.

Researcher inter alia recommends that, organization privacy policy be put in strict sense,

adoption of current methods like installing special programme in computer to record all

events on desktop in picture, surveillance cameras and to maintain friendly relations in

solving the disputes arising at work place.

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TABLE OF CONTENTS

Certification ....................................................................................................................... i

Declaration ....................................................................................................................... ii

Copyright ......................................................................................................................... ii

Acknowledgement .......................................................................................................... iii

Dedication ........................................................................................................................ iv

List of Abbreviations ....................................................................................................... v

ABSTRACT ..................................................................................................................... vi

List of Statutes ................................................................................................................. xi

List of International Instruments ................................................................................ xii

List of Cases .................................................................................................................. xiii

TABLE OF CONTENTS ............................................................................................. viii

CHAPTER ONE: ............................................................................................................. 1

1.1 GENERAL INTRODUTION ................................................................................ 1

1.2 Background of the Problem ...................................................................................... 2

1.3 Statement of the Problem ......................................................................................... 5

1.4 Hypotheses ............................................................................................................... 6

1.5.0 Objectives of the Research .................................................................................... 7

1.5.1 General Objective .................................................................................................. 7

1.5.2 Specific Objectives ................................................................................................ 7

1.6.0 Significance of the Research ................................................................................. 8

1.7 Literature Review ................................................................................................... 9

1.8.0 Research Methodology ...................................................................................... 16

1.8.1Area of Study .................................................................................................... 16

1.8.2 Unity of inquiry ............................................................................................... 17

1.8.3 Sample Population ........................................................................................... 17

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1.8.4 Sampling Techniques ....................................................................................... 17

1.8.5 Data Collection Methods ................................................................................. 17

1.8.6 Primary Data and Secondary Data ................................................................... 17

1.8.7 Data Presentation and Analysis ....................................................................... 18

CHAPTER TWO ........................................................................................................... 19

CONFIDENTIALITY CLAUSES UNDER DIFFERENT LAWS ............................ 19

2.0 Introduction ............................................................................................................ 19

2.1 Position of the Law on Disclosure of Confidential Information. ........................... 19

2.2 Personal Right to Privacy under International Instruments, the United Republic of

Tanzania Constitution and other Legislations. ............................................................. 24

2.3 Difficulties on How to Determine Confidentiality of Information. ....................... 28

2.4 Rights of Employers and Employees on Confidentiality. ...................................... 29

2.5 Computer and Privacy Protection ........................................................................... 30

2.6 Conclusion .............................................................................................................. 32

CHAPTER THREE ....................................................................................................... 33

RESEARCH FINDINGS ............................................................................................... 33

3.0 Introduction ............................................................................................................ 33

3.1 Methods used to keep Data and Leakage Ways ..................................................... 34

3.2 Legal Challenges Facing Employers and Employees on the Aspect ..................... 38

3.4 Computer use and the Enforceability of Confidential Clauses .............................. 41

3.4 Critical area on Confidentiality Clauses Enforcement in Tanzania ....................... 42

3.5 Conclusion .............................................................................................................. 43

CHAPTER IV: ............................................................................................................... 44

SUMMARY OF FINDINGS, CONCLUSION AND RECOMMENDATIONS ....... 44

4.0 Summary of Findings ............................................................................................. 44

4.1Conclusion ............................................................................................................... 45

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4.2 Recommendations .................................................................................................. 46

REFERENCES ............................................................................................................... 49

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List of Statutes

Local Statutes

Arbitration Act [Cap 15 RE: 2002]

Bank of Tanzania Act, Act no 4 of 2004

Banking and Financial Institutions Act, Act no.5 of 2006.

Employment and Labour relations Act, Act no.6 of 2004

Labour institutions Act, Act no 7 of 2004

Penal Code [Cap 15 RE: 2002]

Information Technology Act, 2000

Other jurisdiction’s Statutes

India Legislation

Information Technology Act, 2000

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International Instruments

Charter of Fundamental Rights of the European Union (2000)

Declaration of Human Rights (UDHR 1948)

European Convention on Human Rights (1950)

International Covenant on Civil and Political Rights (ICCPR 1966)

United Nations Convention on the Rights of the Child (1990)

United Nations Guidelines concerning Computerized Personal Data( 1990)

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List of Cases

Coco v. A.N.Clark (Engineers) Ltd [1969] R.P.C. 41

Lancashire Fires Ltd v. SA Lyons &Sons [1996] FSR 629

Littlewoods Organization Ltd v. Harris [1978] 1 All ER 1026 (CA)

Morrison v. Moat (1851)9 Hare 241

Prince Albert v. Strange (1849) 47 ER 1302 (RR 479).

Reddy v. Siemens 2007 (2) SA 486 (SCA)

Saltman Engineering Co. Ltd. v. Campbell Engineering Co. Ltd [1963]3All ER 413

Trust Bank Tanzania Ltd v. Le Marsh Enterprises Ltd

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CHAPTER ONE

1.1 GENERAL INTRODUTION

A confidentiality clause is a legally binding clause between employers and employees

which assigns severe penalties where certain information is revealed.1

A confidentiality clause is the most crucial provision in a non-disclosure agreement or

confidentiality agreement. It provides that the individual who enters into it with another

must not disclose certain pieces of information that he or she has been given access to

without the consent of the individual who has granted access to it. A breach of this

agreement may result in payment of damages or some other form of restitution2.

This work is all about checking the relationship which exists between the employers –

employee relations as duty of confidentiality is concerned; it will show the legal

challenges that face the parties in enforcing the confidentiality information.

This work is going to provide basic answers for many questions of whether the

weakness of law or non compliance of work ethics is or is the basic challenges that we

face in this aspect of confidentiality clauses enforcement. This study is going to be at

Dar es salaam City, where we believe that many employers and employees are centered,

the researcher visited different companies and organization to seek for clear information

on the subject, and researcher will use methods like questionnaire, interview and

observation.

The work will be as follows the first chapter as proposal, and then will be followed by

chapter two which will entail the legal perspective on the confidentiality clauses then

next chapter will be about the field observation and lastly recommendations.

1 Data Theft in Cyber Space Issues and Laws accessed on http:// www.wisegeek.com/what-is-a-confidentiality-

clause.htm at 20:00 hrs 4th January, 2012 2 Ibid

2

Therefore with expansion of modern technology it has been a critical problem where by

the computer use has been in some way changed to be an easy means to leak some

important information.

1.2 Background of the Problem

The problem of breach of confidentiality clauses is so common in working places such

as governmental institutions, Non Government Organization‘s and various Companies;

this is even more sparkled in this era of computer technology and internet usage.

Basically ,the employer owe a duty to keep the information of the employee being

health, education or family matters like wills and the amount of salary, This being the

case ,the employee as well has a legal duty to insure the office confidential information

does not get out. In this regard we experience a lot of complaints from employers and

employees regarding the issues concerning their personal or business confidence in

public; it is obvious that someone somewhere has breached a duty to owe the privacy of

another.

The law relating to breach of confidence has an erratic history. From earlier beginnings

it largely developed in England and spurt in the early to middle of the 19th

century, and

then lay relatively dormant until the late 1940‘s when it was realized that this was an

extremely useful area of law.

One of the most venerated and tenets of political philosophy since the time of the Greek

has been the dichotomy between private and public realms. From the age of Socrates and

Aristotle to the present day discussions of human nature and appropriate role of

government and individual have utilized the notion of boundary that marks what is

private and what is public3.

Almost the first page of the bible introduces us to the feeling of shame as a violation of

privacy, after Adam and Eve had eaten the fruit of the tree of knowledge the eyes of both

3 Richard C.T. and Anita L.A.(2002)Privacy Law, 2nd Edition, West Group .p 3

3

were opened and they knew that they were naked, and they sewed fig leaves together

and made themselves aprons.

Thus mythically, we have been taught that our very knowledge of good and evil –our

moral nature as men –in somehow, by divine ordinance linked with a sense and realm of

privacy4.

Some of the early cases involved patent medicines .It was obvious that a lot of money to

be made from these magic cures, bearing in mind that conventional medicine was still

fairy primitive at this time and the public at large was relatively ignorant and

uneducated.5 The term breach of confidence was not used at the stage and the breach of

faith was actionable per se and was not dependent upon the existence of a contract as in

case law, in the case of Morrison v. Moat 6 where the plaintiff had a medicine named

‗Morrison Vegetable Universal Medicine‟ where by the partner Moat had improperly

told his son of the recipe as against the agreement of privacy between them due to

dispute within the partners Moat and Morison this was seen as a breach of faith and of

contract by partner

The modern English law of confidence stems from the judgment of the Lord Chancellor,

Lord Cottenham in which he restrained the defendant from publishing a catalogue of

private teachings made by Queen Victoria and Prince Albert (Prince Albert v Strange)7

However, the jurisprudential basis of confidentiality remained largely unexamined until

the case of Saltman Engineering Co. Ltd. v Campbell Engineering Co. Ltd 8.in

which the Court of Appeal upheld the existence of an equitable doctrine of confidence,

independent of contract.

4 Milton .R.K (1966) Privacy and Law: A Philosophical Prelude, p 272. 5 Bainbridge,D. (2002)Intellectual property,5th Ed, Pearson Education Management.p274

6 (1851)9 Hare 241 7 (1849) 47 ER 1302 (RR 479). 8 [1963]3All ER 413

4

In Coco v A.N.Clark (Engineers) Ltd 9 Megarry, J .Developed an influential tri-partite

analysis of the essential ingredients of the cause of action for breach of confidence: the

information must be confidential in quality, it must be imparted so as to import an

obligation of confidence, and there must be an unauthorized use of that information to

the detriment of the party communicating it.

Globally computer development, unfortunately, and abuse of computers, or abuse of

data and information that are processed modern information technologies. The mass use

of computers in different circumstances, with the increasing use of telecommunication

equipment by increasing the number of users, enables a growing number of thieves, and

unauthorized persons (hacker) to break through the protective codes of authorized users

and their joining the system creates a lot of damage and cause unforeseeable

consequences, developed methods of protection, which prevent unauthorized use of

insurance on the basis of confidentiality. The paper will show the modern information

technologies to protect data and information with special emphasis on their legal

protection. Use of modern information technology enables the collection and processing

large amounts of data from various different areas of human activity10

In Tanzania the situation is not better the breach of confidentiality information do exist

either directly or technically by use of electronic means or either way foristance, The

Guardian, Tuesday 14, 2011 in its page for International Business News /Analysis

posted vacancies for Job in Oxfam where by the employer allowed the salary of a

particular post to be published, the same information posted in the website

www.oxfam.org.uk/jobs , something which at prima facie will create a breach of

confidence to an employee when gets the vacancy, but again it can also influence people

to know the status of the said member staff in income level.

9 [1969] R.P.C. 41, 10 Lawyer‘s club India Article, Data Theft in Cyber Space Issues and Laws accessed at

http://ieeexplore.ieee.org/xpl/freeabs_all.jsp?arnumber=5606114 on 25th Sept, 2011.

5

There some provisions in our laws which talk of confidentiality though still there are

extreme reports on breach of confidentiality clauses which is quite an interesting

question as to whether the weakness of the law ,poverty or the lack of job ethics that

make this subject continue. Good example of the provisions which stipulate this concept

are s101 11

which provide for an offence for disclosure of information of another relating

to business or financial affairs of another person and s.59 12

is actually of the same

wording, something to notice here is that the law creates an offence without giving out a

strong penalty this is an open loop holes which are present into our laws.

That it has been noticed recently that due to this cyber era, the computer theft has eased,

especially in the companies and in government institutions also the confidential

information are leaked as well, so to say the technology has brought challenges to

employers which through this study the researcher is going to pinpoint them critically

especially in Dar es salaam city where many companies, employers and employees are

situated in Tanzania.

1.3 Statement of the Problem

The problem of confidentiality clauses enforcement is critical nowadays. The problem

has been intensified by the computer technology and use.

It is difficult to notice how our dependencies are moving from the real world to the

digitally networked world. The next step in this evolution is the way that we are moving

from a society where work is tied to geography to one where geography has no meaning

in the sense that interception of confidential information can be made by a person

through access of a computer say in Canada while the confidential information breached

11 Employment and Labor relations Act, Act no.6 of 2004

12 Labour institutions Act, Act no. 7 of 2004

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is in Tanzania. It‘s an evolution similar to how mobile phone networks transformed

telephone.13

In Tanzania different laws has tried to provide for confidentiality clauses these include14

,

Arbitration Act15

, Penal Code16

, Bank of Tanzania Act17

, Banking and Financial

Institutions Act18

, Employment and Labour relations Act 19

and Labour Institutions Act20

,

still the gap in law is seen as no single law amongst these which talk of the reasonable

penalty for the breach of the offence established.

In this study the researcher critically analyzed the laws which support confidentiality

and analyze challenges of the laws, challenges facing employers brought by the

computer technology and computer use respectively and the study came to give out the

steps taken to the challenges facing employers in enforcing the confidentiality clauses.

Therefore this research covered three aspects namely, weaknesses of the law governing

confidentiality clauses in Tanzania, the legal challenges facing employers and

employees due to the computer technology in enforcing the confidential clauses and

lastly the method used by employers to encumber the challenges in enforcing

confidentiality clauses.

1.4 Hypotheses

This research was preceded by the following hypothesis;

That, the penalties imposed do not suffice/

13

Lawyer‘s club India Article, Data Theft in Cyber Space Issues and Laws accessed at http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=383 at 20:00hrs October 2011. 14

Labor relations Act [Cap 15 RE: 2002] 15

Arbitration Act [Cap 15 RE: 2002] 16

Penal Code[Cap 15 RE: 2002] 17

Act no 4 of 2004 18

Act no.5 of 2006 19

Act no.6 of 2004 20

Act no 7 of 2004

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That, the law enforcers have little knowledge on the aspect of confidentiality clauses/

That, the breach of confidentiality clause is due to unethical actions of the employers

and employees/

That, the increase use of computer and internet, increases the breach of confidentiality

clauses/

1.5.0 Objectives of the Research

From the above hypotheses the following objectives have been advanced and

categorized into general and specific objectives;

1.5.1 General Objective

The General objective is whether the laws enacted in Tanzania to protect confidentiality

clauses are sufficient and effective.

1.5.2 Specific Objectives

Specifically, the research found out the following;

i. The methods used by the employees or employers associated in leaking the

confidentiality clauses.

ii. The means used by employers and employees to avoid the breach of

confidentiality clauses.

iii. The means used by employers and employees to keep confidential information.

iv. The legal challenges facing employees and employers on the breach of

confidentiality clauses.

v. The legal challenges brought by computer use at work place on the aspect of

confidentiality clauses.

vi. To investigate the causes for the breach of the confidentiality clauses.

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vii. To explore the reasonable penalties to be imposed.

1.6.0 Significance of the Research

Like all medical information, the results of genetic tests can potentially reveal personal

information such as current health status or susceptibility to an illness.

To show that protecting the confidentiality information is necessary to ensure that third

parties (employees, individuals, employers) cannot access personal information without

the consent of the individual to whom the information relates.

To help every organization know that has a need to keep certain information

confidential. HR typically is entrusted with maintaining sensitive employee data and

information relating to employee and management issues, and such information should

be confined to those with a need to know.

To educate employees on the importance to keep or maintain confidentiality during and

after employment tenure.

To show the gaps which are left in our laws for sake of enforcing confidentiality clauses.

Helps the employers and employees to know the means which are currently used by the

other organizations to prevent the breach of confidentiality clauses.

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1.7 Literature Review

The literature on this study is very limited. Despite the wide range of journals, articles,

and textbooks relating to secrecy and confidentiality, particularly the ways the

confidential information are to be interpreted and kept, only a handful of them are useful

for purposes of this research. The existing literature is general, outdated, and

insufficient. Apart from statutes governing confidentiality clauses in Tanzania there is

no textbooks which could be relied upon by the author of this report, instead, foreign

literatures were resorted to which again are not pertinent sometimes in construing the

current position of law of Tanzania on enforcement of confidential clauses.

An employee owes a duty of confidence to his employer and this duty may be expressly

stated in the contract of employment, and in any case will be implied by law. It can be

said that an employee always has a duty of care to act in his employers best interest

together with a of good faith, and this will obviously include a duty not to divulge

confidential information about his employers best interests together with a duty of

good faith, and this will obviously include a duty not to divulge confidential information

about his employers business to others without the consent of the employer21

.

The law of breach of confidence began about 50 years ago .It become apparent that this

area of law was extremely well suited to protecting confidential information during the

development stages before other legal rights were able to afford protection.22

Where the information would be likely to be regarded by employees as confidential

information it is not essential that the employer specifically points out this in

Lancashire Fires Ltd v SA Lyons &Sons23

Lord Bingham MR commented that we do

not accept that it is incumbent on an employer to point out to his employee the precise

limits of that which he seeks to protect as confidential, particularly where as here, what

is new is an integral party of a process.

21 Bainbridge,D. (2002)Intellectual property,5th Ed, Pearson Education Management.p291 22 Bainbridge,D. (2002)Intellectual property,5th Ed, Pearson Education Management.p275 23[ 1996]FSR 629

10

Underlying many critiques of privacy is the peculiarly modern anxiety that the

empowerment of privacy is just one more wheel bolted onto the juggernaut of

individualism.

It is said that our age is the era of loss community, notable by the pre occupation of the

contemporary thought with personal alienation and cultural disintegration24

.

Attaching the pursuit of privacy rights to the modern canonization of individualism,

critics reason that privacy, beneath its benevolent exterior, is a threat to building and

maintaining community ,they argue that it embodies an anachronism, a vision of discrete

and autonomous person in an era that must judge such a view as life threatening.

They aver further that any sort of right to privacy that anchors such an attitude in legal

rules and principles ends up sanctioning social and political irresponsibility.

It undermines participation in the res publica, corrodes the sense of communal

responsibility and undermines social negligence at a time when the keyword is not

privacy but responsibility25

The problem of data theft which has emerged as one of the major cyber crimes

worldwide has attracted little attention of law makers in India , unlike U.K which has

The Data Protection Act, 1984 there is no specific legislation in India to tackle this

problem, though India boasts of its Information Technology Act, 2000 to address the

ever growing menace of cyber crimes, including data theft. The truth is that Indian IT

Act, 2000 is not well equipped to tackle such crimes as an example in protection against

breach of confidentiality and privacy of the data it provides that, any person upon whom

powers have been conferred under IT Act and allied rules to secure access to any

electronic record, book, register, correspondence, information document of other

24

Richard C.T. and Anita L.A.(2002)Privacy Law, 2nd Edition, West Group .p 19 25

Ibid.

11

material discloses it to any other person, shall be punished with imprisonment which

may extend to two years or with fine which may extend to one lakh rupees or both26

.

In Tanzania there some confidentiality clauses which are attached in the job contracts

which give the obligation to employees to keep secret of the matters pertaining the

company until he is allowed to do so, this can be exemplified in the Airtel employment

contract whose confidentiality clause reads the employee shall not, either during the

continuance of his or her employment hereunder or within 3 years thereafter ,except in

the proper course of his /her duties or in the event of prior written consent of the

company, divulge to any person whosoever ,any information concerning the business or

finances of the company or any of its dealings ,transactions or affairs which come to his

/her knowledge during or in the course of his/her employment and affairs which come to

his/her knowledge during or in the course of his or her employment and he /she shall not

communicate with any person or authority in connection with any matters concerning

the company without such consent as aforesaid specified.

The laws which entails about the confidentiality clauses in Tanzania, as clearly seen in

the background of the problem the laws set out the loop hole by not mentioning a

reasonable penalty for one who breach the law on that aspect, this is amongst major

challenge that faces the enforcement of confidentiality clauses, this research is going to

come up with suggestions on how to cover up this aspect well in our laws.

The question of data theft which is under the confidentiality clause has been settled

down a bit by some laws in different jurisdictions as a matter of example in India as

discussed.

Data is a valuable asset in this modern era of Information Technology (IT). Data is an

important raw-material for Call Centers and I.T. Companies. Confidential information

26

Information Technology Act, 2000 ,S.72

12

has also become an important tool and weapon for Corporate to capture larger market

shares. Due to the importance of Data in this new era, its security has become a major

issue with the I.T. industry. The piracy of data is a threat, faced by the I.T. players, who

spend millions to compile or buy data from the market. Their profits depend upon the

security of the confidential information27

The major issue regarding confidential information is its International character, for

example Systems may be accessed in USA, the data manipulated in China and the

consequences felt in India. The result of this ability is that different sovereignties,

jurisdictions, laws and rules will come into play which again is an issue in itself. Further,

collection of evidence in such circumstances become another issue as investigation in

three different countries, all of whom may not be in talking terms, is almost impossible

and poor technical know-how of our cops adds to the woes. Also, the lack of

coordination between different investigating agencies and a not-so-sure extradition

process is another head ache. However the biggest of all these issues is the lack of

specific laws in the country dealing with this crime, so even if the culprit is caught he

can easily get away by picking and choosing any of the of various loopholes in our

law.28

Concerns about workplace privacy are becoming more widespread as electronic

monitoring becomes more prevalent. It is easy to purchase and install a video camera,

and there's wide agreement that it is appropriate to install security cameras in stairwells

and parking garages. However, most would argue that it is not appropriate to install

cameras in areas such as bathrooms, dressing rooms and locker rooms. Many employers

argue that there are compelling business reasons to use video cameras to monitor their

employees, such as to help deter theft and other inappropriate behavior. Courts generally

perceive an employer's videotaping of open and public work areas as a logical and

27

Lawyer‘s club India Article, Data Theft in Cyber Space Issues and Laws accessed at

http://www.lawyersclubindia.com/articles/print_this_page.asp?article_id=383 28 ibid

13

lawful extension of activities that could be seen by a supervisor. But if an employer

targets a camera on one workstation, for example, a court may find the use of such

selective surveillance to be overly intrusive29

.

Many states have provisions that limit or prohibit video surveillance. And employers of

union workers may be required to bargain with the union to implement video

surveillance.

In addition, unnecessary monitoring can create poor employee morale. Furthermore,

employers that target certain employees or groups of employees for monitoring may

expose themselves to discrimination claims.

As David R Johnson and David post have pointed out ,‖events on internet occur

everywhere but nowhere in particular .communication are engaged in by on –line

personae who are human and real but ,who are not at the same time „unreal‟ in that they

might not be traceable to any particular person. No physical jurisdiction has a more

compelling claim than any other to subject these communications and events exclusively

to its laws” therefore is an obvious problem to trace the particular person who have

leaked the confidential information thus why some jurisdiction has tried to prevent it just

by putting some restraints in their employees contracts.

In avoidance of the side effects where by the ex employees breach confidential clauses

the employers can safeguard their confidential information by making the following as

Australia employers has put them in practice;

1. Ensure that employees are subject to contractual restraints extending beyond the

term of their employment agreement which spell out in as much detail as possible

the nature of the information which the employer considers to be confidential.

29 Naomi Cossack, Margaret R. Fiester, John Sweeney, (2006) Prompted resignation, surveillance, confidentiality

accessed at http://findarticles.com/p/articles/mi_m3495/is_10_51/ai_n27011518/ on 01st Jan, 2012, 20:00hrs

14

2. Ensure that employers impose positive obligations on employees to deliver up or

destroy all documents in their employees' possession and otherwise permanently

delete all records (including electronic records) which contain the employer's

confidential information upon termination of an employee's employment.

3. Consider imposing a post-employment restraint on employees to prevent them

from developing a business in competition with their former employer for a

specified period of time30

.

However the following remark of Lord Denning 31

was recently quoted with approval

by the Supreme Court of Appeal in Reddy v Siemens32

.it is thus established that an

employer can stipulate for protection against having his confidential information passed

on to a rival in trade. But experience has shown that it is not satisfactory to have simply

a covenant against disclosing confidential information. The reason is because it is so

difficult to draw the line

Between information which is confidential and information which is not; and it is very

difficult to prove a breach when the information is of such a character that a servant can

carry it away in his head. The difficulties are such that the only practical solution is to

take a covenant from the servant by which he is not to go to work for a rival in trade.

Such a covenant may well be held to be reasonable if limited to a short period33

.

From Lord Denning line of view is that not every information kept is confidential

information, information to be confidential needs to be identified as confidential and

observed as confidential by all the parties, there is no use of an employer to say the

information is confidential while he pass the same to third parties as per Lord Denning it

30 Davies Collison Cave Darron Saltzman and Timothy Creek (May 10 2011) Damages awarded for misuse of

confidential information by former employees to create competing product , accessed at

http://www.lexology.com/library/detail.aspx?g=05034234-c785-4165-97fb-42103db88571 on 20 sept,2011 at 6.00

am 31 Glyn Marais (2009),Crime Prevention Asset Forfeiture and Collateral Damage to Creditors 1st Edition 32 2007 (2) SA 486 (SCA) 33 From The Littlewoods Organization Ltd v Harris [1978] 1 All ER 1026 (CA) 1033c-d

15

is wealth for one to have a restraint of trade not to be employed by rival trader who need

use the information rather than restraint not to pass confidential information ,because

some information can easily be taken by his head no need of document hence difficult to

prove breach.

There as well several ways in which the data can be trapped away from the computer in

this cyber era most of the confidential information are kept in the folders in a computer

and even in emails over internet so when website is accessed cookies record and track

and store to the users computer and browser ,if a user returns to the website ,in this way

the cookie can tell the website that this is the same computer that was here some time

ago, thus tracking the movement of users of particular computers.

Cookies can be set in the metatag of a web page as well as being set and read using Java

script (a computer language), generally speaking cookies contain code or other data that

uniquely identifies a users computer ;this enables the site to track and profile the users

activities on that site as well as other sites. The cookies may itself not contain personally

identifying information but the website may know the identity of a user whose browser

sends the cookies for instance a website that collect the users names or email addresses

from an on line enquiries, registration or sales is readily able to connect personally

identifying information to a cookie sent by users browser and to the other information

obtained about the user34

.

But a gain it has been evidenced that the information can leak through html-enabled

email programmes example Microsoft outlook in this instance the sender of an email

message can include personally identifying information about the recipient hidden in the

code of e-mail .when the reader reads the message or access a page mentioned in the

34 Lim,Y.F (2007) Cyberspace Law Commentaries and Materials, 2nd Ed, oxford university press, London

16

email a cookie is set and the site then receives details of the person associated with the

cookie.

Generally the literature shows that still the problem of confidentiality clauses

enforceability is a critical challenge in this cyber era. The literature are obviously

concentrated on the employers side where most of literatures entails the breach of

confidentiality clauses by an employee but forgetting about the breach by the employers,

this research is going to deal with all these parties equally in a sense that the breach by

employers to employee will be analyzed and breach by employee to employer will be

checked to know well the methods applied and come up with good data and ways to

reduce if not to eliminate the problem.

1.8.0 Research Methodology

This research was carried out in specific areas which are directly involved to the

problem in question; also the researcher employed different types of data collection as

here under explained.

1.8.1Area of Study

This research was done in Dar es Salaam city by visiting different government offices,

Non Governmental Organizations (NGO‘S), companies and international organizations

for data, it was centered in Dar es Salaam due to the fact that, it is believed to be a place

which has a lot of companies and offices as well as many employees and employers

hence it was a wealth place for this research.

17

1.8.2 Unity of inquiry

For the purpose of this research 25 respondents were questioned, the number can be

seen as small but the people who were asked are so resourceful in this topic ,hence there

were no need to take many respondents ,on top of that observation method was used to

ascertain the information.

1.8.3 Sample Population

The sample populations were the Magistrates, Judges, Advocates, Human Rights

Activist, Law teachers, Employers, Trade unions officials, Information and

communication Technology experts, employees and International Organization Officials

example International Labour Organization (ILO)

1.8.4 Sampling Techniques

The sampling technique was specific, because the researcher needed to have specific

details for people who directly have knowledge on the aspect and are wealth in aspect of

confidentiality clauses as opposed to random sampling.

1.8.5 Data Collection Methods

To make this research effective the researcher employed both primary data collection

method and secondary data collection method which enhanced the desired results.

1.8.6 Primary Data and Secondary Data

Primary methods involved interviews, questionnaires and observation, the aim of using

questionnaire was to help the researcher to deal with the problem of access to the

respondents. The purpose of using interview was to help the researcher to get clear

information from the individuals since it is face to face interaction, observation method

18

was of essence because the researcher could have a direct picture of the problem hence

get data to write. On the other hand secondary data were through literature review,

media material and internet sources, the researcher visited and construed published

resource materials which cover confidentiality clauses in Tanzania and other

jurisdictions to get all the materials the research bought some books; visited library and

internet so as to enable him to get reliable information.

1.8.7 Data Presentation and Analysis

The researcher used qualitative method to analyze data. Qualitative analysis refers to

non-empirical analysis. According to Miles and Huberman35

qualitative analysis consists

of three concurrent flows activity: data reduction, data display and conclusion drawing

and verification. Data reduction refers to the process of selecting, focusing simplifying,

abstracting, and transforming the data that appear in transcription, in this research,

writing summaries and teasing themes were employed to reduce data. The second

activity is data display. A display is an organized, compressed, assembly of information

that permits conclusion drawing; this was done using charts that were drawn to

categorize data. This was useful to enable the researcher complete the third stream of

data analysis, which is conclusion drawing and verification.

35

M.B Miles and A. M Huberman(1998) An Expanded Source Book-Qualitative Data Analysis p11

19

CHAPTER TWO

CONFIDENTIALITY CLAUSES UNDER DIFFERENT LAWS

2.0 Introduction

This chapter tries to exhaust different laws covering the aspect of confidentiality issues

both Internationally and domestically by referring to different sources moreover the

chapter explores the aspect of computer technology in relation to privacy, Generally the

researcher has put these details under the following subtitles ; Position of the Law on

Disclosure of Confidential Information, Personal Right to Privacy by Some Laws,

Difficulties on How to Determine Confidentiality of Information, Rights of Employers

and Employees on Confidentiality, Computer and Privacy Protection and lastly chapter

conclusion.

Employers and employees face different legal challenges in enforcing confidentiality

clauses as part of this chapter, the challenges are expressed by measure of right and

duties over privacy issues as addressed under different laws.

2.1 Position of the Law on Disclosure of Confidential Information.

The disclosure of information to employees/workers or third parties in Tanzania has

always been a matter which depended largely on the relationship between the employer

and the employees as well as the employer‘s goodwill towards the employees.

Information disclosure in Tanzania is examined in this research. It is demonstrated that

the situation regarding the disclosure of information to employees and employers has

changed substantially since the commencement of the Employment and Labour

Relations Act36

no.6 of 2004 and Labour Institutions Act37

no. 7 of 2004. The research

also reports the views of management and of worker representatives of a number of

surveyed organizations regarding the disclosure of information. Some inferences are

36 Act no.6 of 2004 37Act no. 7 of 2004

20

drawn from the findings of the research, the organizations and people visited are

Magistrates, Judges ,Advocates, Human Rights Activist, Law teachers, Employers,

Trade unions officials, Information and communication Technology experts, employees,

International Organization‘s Officials for example International Labour Organization

(ILO) and Association of Tanzania Employers‘ (ATE).

It is sad to concede that in Tanzania there is no comprehensive privacy legislation.

While ICT has stormed Tanzania and the citizens are deploying ICT in everyday life the

framework for privacy protection in these emerging technologies is not known. Of

course this does not mean that right to privacy is not recognized in Tanzania Of course

this does not mean that right to privacy is not recognized in Tanzania. The United

Republic of Tanzania (URT) Constitution 38

defines privacy as follows:

„…Every person is entitled to respect and protection of his person, the privacy of his

own person, his family and of his matrimonial life, and respect and protection of his

residence and private communications…

Article 16(1) and (2) of United Republic of Tanzania Constitution of 197739

provides for

right to privacy. Article 16(2) of URT constitution provides for possibility of other laws

to encroach the right to privacy. The said article stipulates clearly that the law maker

will enact law to stipulate how privacy right may be protected, pursued or encroached by

government agents. Unfortunately this requirement has not been put into

implementation. Ironically in Tanzania there are more laws restricting privacy than laws

protecting privacy.40

38

(Cap 2 R:E 2002]S.16 (2) 39 Ibid

40 Ubena J (June 8, 2010) Law as the Lifeblood of Human Being: Tanzania Lag on Privacy Law at

http://tanlex.wordpress.com/2010/06/08/tanzania-lag-on-privacy-law/

21

Employment and Labour Relations Act41

clearly establish breach of confidentiality

clause as an offence under s.101 (1)42

.However under subsection 2 of the same section

it provides some exceptions which are if information disclosed are in compliance of this

Act, which are; 43

The Act went further to establish a penalty under subsection 4 of

s.10244

further to that the Labour Institutions Act, no.7 of 2004 under s. 59 (1) and (2)

tell the same as in Act no.6 of 2004.

These two Acts has put a clear path to justice as it puts liability to any party may be

employer or employee as the case may be. However it is a challenge still that the penalty

mentioned in some case might not be enough as for instance a person divulge

information in exchange of say 5 million Shillings while the penalty is not to exceed one

Million shillings in this regard it may be easy for a person to breach on a good cash.

The Tanzania Communication Regulatory Authority (TCRA) under s.2445

has a duty to

maintain confidentiality on the information obtained due its duty performance and also it

has placed confidentiality requirements on service providers /operators for all

information they get from the customers.

The Bank of Tanzania Act46

under section 16 clearly stipulates the duty of confidential

information47

.This Act also stipulates the obligation to both employer and employee

duty to confidentiality clause.

41 Act no.6 of 2004 42 It is an offence for any person to disclose any information relating to the financial or business affairs of another

person if that information was acquired in the performance of any function or the exercise of any power under this

Act.

43 (a) to enable person perform or exercise a power under this act (b) in accordance with any written law (c) for

proper administration of this Act (d) for purposes of administration of justice.

44

Any person convicted of an offence under s. 101 shall be sentenced to a fine not exceeding one million

shillings. 45

Tanzania Communication Regulatory Authority Act ,Act no. 2003 46 Act no.4 of 2006

22

Banking and Financial Institutions Act48

stipulates that ―Every Bank or financial

institution shall observe, except as otherwise required by the law the practices and

usages customary among bankers, and in particular, shall not divulge any information

relating to its customers or their affairs except in circumstances which, in accordance

with the law or practices and usages it is necessary or appropriate for the bank to

divulge such information”49

.

On top of that the Act went further and stating that ―Every director and every member of

a committee, auditor, advisor, manager, officer and employee of the bank or financial

institution shall, before assuming his duties make a written declaration of fidelity and

secrecy which shall be witnessed by the chief Executive officer or the Secretary of the

bank or financial Institution concerned”50

.

However this Act appears self satisfactory whereby it even impose a strong penalty on

the defaulting party as it stipulates that ―Any person who contravenes the provisions of

this section commits an offence and shall be liable on conviction to a fine not exceeding

twenty million shillings or to imprisonment for a term not exceeding three years or to

both“51

.

The laws regarding Banking are in most cases strict as compared to general law

governing employment, something which makes the problem go higher to non banking

organizations.

I know not so many Tanzanians are aware of how Communication Service providers are

using consumers‘ personal information. They are using such information for marketing

47 Unless for the purposes of performance of his functions, when so required by the law or authorized by the board ,no

member of the board or staff of the Bank shall disclose any information relating to the Bank or to any transaction or

customer of the bank acquired in the course of employment or discharge of his duties. 48 Act no 5 of 2006. 49 Ibid s.48(1) 50

Op cit s.48(2) 51

Op cit s.48(6)

23

purposes. They also use such information to evaluate their businesses. Hence

monitoring and surveillance in Tanzania is rampant particularly online surveillance.

As that is not enough one will be surprised as the surveillance is not done by website

owners or communication service providers only but even employers are reading

employees e mails, this for sure is surveillance. Thus employees‘ privacy is not secured

in Tanzania.

It is important to this of privacy in broad perspectives. We should not limit ourselves to

privacy infringement in traditional sense like where the policy come to a person‘s home

and search the premises or where a person is stopped by police and searched. You here a

person saying you are interfering with my personal integrity.

We need to retain such integrity even online. But that has been made difficult by our lag

in enacting Privacy legislation in Tanzania. We have to blame ourselves for such lag.It is

worth of note that so long we visit websites so long we use ICT facilities, so long we use

our credit cards, our Internet banking, we shop in the supermarkets then we are not

going to be left alone.

We will be able to balance national security and other interests with privacy only if we

enact privacy legislation. In this way our privacy online will be guaranteed52

52 Ubena J (June 8, 2010) Law as the Lifeblood of Human Being: Tanzania Lag on Privacy Law at

http://tanlex.wordpress.com/2010/06/08/tanzania-lag-on-privacy-law/

24

2.2 Personal Right to Privacy under International Instruments, the United

Republic of Tanzania Constitution and other Legislations.

The right to privacy is internationally guaranteed as many international instruments

mention this right, the following are instruments that ascertain the privacy; under the

Universal Declaration of Human Rights (UDHR 1948) provision which provide for

privacy stipulates ―that No one shall be subjected to arbitrary interference with his

privacy, family, home or correspondence, nor to attacks upon his honour and

reputation. Everyone has the right to the protection of the law against such interference

or attacks53

.

The United Nations Convention on the Rights of the Child, This was adopted on 20

November 1989, and entered into force on 2 September 1990. It includes the following

provisions on privacy;

1. No child shall be subjected to arbitrary or unlawful interference with his or her

privacy, family, home or correspondence, nor to unlawful attacks on his or her

honour and reputation.

2. The child has the right to the protection of the law against such interference or

attacks.54

53 UDHR 1948, Article 12 accessed at http// www.un.org/en/documents/udhr/index.shtml on 21st May 2012.

54 The United Nations Convention on the Rights of the Child. Article16 accessed at

http://www.unhchr.ch/html/menu3/b/k2crc.htm on 11 May 2012 , 20:00hrs

25

The International Covenant on Civil and Political Rights (ICCPR 1966)55

.It includes the following provisions on privacy or confidentiality under Article 17;

1. No one shall be subjected to arbitrary or unlawful interference with his privacy,

family, home or correspondence, nor to unlawful attacks on his honour or

reputation.

2. Everyone has the right to protection of the law against such interference or

attacks'.

Furthermore, The European Convention on Human Rights (1950)56

which inter alia

under Article 8 speaks of Right to respect for private and family life thus;

Everyone has the right to respect for his private and family life, his home and his

correspondence. There shall be no interference by a public authority with the exercise of

this right except such as is in accordance with the law and is necessary in a democratic

society in the interests of national security, public safety or the economic well-being of

the country, for the prevention of disorder or crime, for the protection of health or

morals, or for the protection of the rights and freedoms of others.

Again The Charter of Fundamental Rights of the European Union (2000)57

under Article 7 stipulates on Respect for private and family life ,whereas it stipulates

that ;

Everyone has the right to respect for his or her private and family life, home and

communications.

It goes further and Article 8 speaks of Protection of personal data

55 The document is at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm Accessed on 19th May 2012 at 20:00hrs 56 The document is at http://conventions.coe.int/Treaty/en/Treaties/Html/005.htm 57 Greenleaf G.W. & Waters N. (Eds.) (1994-) 'Privacy Law & Policy Reporter', monthly, available from

http://www.austlii.edu.au/au/other/plpr/index.html accessed on 12th May 2012.

26

1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the

consent of the person concerned or some other legitimate basis laid down by

law. Everyone has the right of access to data which has been collected

concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent

authority.

Also under The United Nations Guidelines concerning Computerized Personal Data

Files, This was adopted by the General Assembly on 14 December 199058

The OECD Guidelines59

Organization for Economic Cooperation and Development's

Guidelines on the Protection of Privacy and Transborder Flows of Personal Data

(OECD, Paris, 1981), this speaks of the data security which involve confidentiality

.However note that the OECD is all about economic development, not about social

issues or civil liberties.More over Guideline 5 of the International Guidelines on

HIV/AIDS and Human Rights calls on States to enact or strengthen laws that ensure

privacy and confidentiality and ethics in Research involving human rights subjects and

this invariably includes the duty to ensure that testing on humans and body tissues and

fluids is done in a humane and ethical manner60

.

The Joint ILO/WHO Guidelines on Health Services and HIV/AIDS summarily captures

the different facets of HIV testing that ―The acceptance of HIV testing depends on

58 Bygrave L. (1998) 'Data Protection Pursuant to the Right to Privacy in Human Rights Treaties' International

Journal of Law and Information Technology, 1998, 6, 247-284, at

http://folk.uio.no/lee/oldpage/articles/Human_rights.pdf

59 Better Policies for better Lives; OECD Guidelines on the Protection of Privacy and Transborder Flows of

Personal Data http://www.oecd.org/document/18/0,2340,en_2649_201185_1815186_1_1_1_1,00.html 60Richard Elliott( 2010) International Council of AIDS Council Organisation Guideline 5 of the International

Guidelines on HIV/AIDS and Human Rights Available at

http://www.icaso.org/publications/Advocates_Guide_EN.pdf accessed on 20th November 2011 at 20:00hrs

27

improved protection from stigma and discrimination as well as assured access to

integrated services for prevention, treatment and care. Confidentiality is very important

as far as encouraging people to undergo HIV testing61

.

It inspires faith and confidence in persons infected by the scourge and dilutes the fears of

stigma and discrimination. There must be legal and administrative mechanism

prohibiting the disclosure of information relating to the one‘s health status except upon

ones consent or legal authorization. Those medical practitioners and those responsible

for conducting tests or providing health services to victims must comply with ethics

requiring non disclosure of information. Heath sector employees and employer should

provide a maximum privacy for people‘s confidential information.

Domestically, the Constitution of United Republic of Tanzania62

which under A.16 (1)

inter alia states that Every person is entitled to respect and protection of his person, the

privacy of his own person, his family and of his matrimonial life .

The same said under the Constitution of Zanzibar of 1984 provides for the confidential

and voluntary aspect of HIV by guaranteeing the right of every individual to privacy and

Personal security albeit in general terms. Article 15(1) thereof states inter alia thus:63

The Occupational Safety and Health Act, 2005 Act No. 8 of 2005 also provides for

testing and confidentiality of testing by providing thereof for medical examinations by

employer for Purposes of establishing fitness to work.

All these legislations provide for confidentiality; however the problems still persist due

to unethical actions by the people but again due to absence or insufficient penalties

stipulated under the laws.

61 Holvast J., Madsen W. & Roth P. (2000-) 'The Global Encyclopaedia on Data Protection Regulation',

Looseleaf, Kluwer Law International. P 271 62 [Cap 2 R:E 2002] 63 Every person is entitled to respect and protection of his person, the privacy of his own person, his family and of his

matrimonial life ...

28

2.3 Difficulties on How to Determine Confidentiality of Information.

Confidentiality clauses as previously explained that are an implied clauses that are

between employer and employee, the issue arise of whether what is termed as

confidential is real confidential or not, an information to be confidential the following

should be in place Confidentiality clauses can assist in creating certainty by defining

what amounts to a business secret and bringing its existence to the mind of the

employee. Where it is clear that the employee does possess confidential information, the

courts have been robust in upholding restraints. It will not assist the employee to claim

that there are less restrictive ways to protect the information. It may not even help to

assert that the restraint, when read as a whole, is unreasonable as to extent.

The following remark of Lord Denning was recently quoted with approval by the

Supreme Court of Appeal in Reddy v Siemens64

.

“It is thus established that an employer can stipulate for protection against having his

confidential information passed on to a rival in trade. But experience has shown that it

is not satisfactory to have simply a covenant against disclosing confidential information.

The reason is because it is so difficult to draw the line between information which is

confidential and information which is not; and it is very difficult to prove a breach when

the information is of such a character that a servant can carry it away in his head. The

difficulties are such that the only practical solution is to take a covenant from the

servant by which he is not to go to work for a rival in trade. Such a covenant may well

be held to be reasonable if limited to a short period.” 65

In the same aspect Article 39 (2) of Trade-Related Aspects of Intellectual Property

Rights (TRIP) does require that the undisclosed information to be protected be secret. It

then gives a binding definition of the secrecy requirement:

64

2007 (2) SA 486 (SCA) 65

From The Littlewoods Organization Ltd v Harris [1978] 1 All ER 1026 (CA) 1033c-d

29

―Natural and legal persons shall have the possibility of preventing information lawfully

Within their control from being disclosed to, acquired by, or used by others without their

consent in manner contrary to honest commercial practices so long as such information

- is secret in the sense that it is not, as a body or in the precise configuration and

assembly of its components, generally known among or readily accessible to persons

within the circles that normally deal with the kind of information in question;

- has commercial value because it is secret; and

- has been subject to reasonable steps under the circumstances, by the person lawfully in

control of the information, to keep it secret".

2.4 Rights of Employers and Employees on Confidentiality.

The most delicate area for the worldwide harmonization of the law of confidential

information shall probably be the interpretation of honest commercial practices

regarding employees who depart from a company. The employee undoubtedly enjoys a

right freely to use his personal capacities, in-born or acquired skill, zeal, exactitude and

memory. Now in his memory, some confidential information of his former employer

will not fade away before he has been able to put them to use in the service of his new

employer, or for himself if he works independently. To which extent is the employee

prevented to have recourse to the confidential information he has been acquainted with

by virtue of his employment? Practical, if not very refined test would be to prohibit any

use of information that is taken away on documents or electronic supports. This test was

applied in a recent computer software case in the United States: in view of the striking

similarity between both programs, the trier of facts could not believe that the particulars

of the "old" program belonging to the former employer that were on a disquette in a

drawer three offices down the hall of the desk of the developer of the "new" program

had not been put to his disposal by the employee who had just changed his job.

Nonetheless, the employee should enjoy the opportunity to use documents if they

embody information that is generally known or easily accessible. Further, the employer

30

may legitimately obtain an injunction against the use of one secret formula, even if kept

in the mind of the departing employee. Hence, there is no ready-made standard to reach

a solution in every instance. The basic principle is, however, that employment is not a

"soul-destroying business"

An employee may compete with his former employer and do researches on his own or

on behalf of a new employer. The sensitivities of various countries in that area shall be

delicate to harmonize.

2.5 Computer and Privacy Protection

The revolution in communication and data processing that is occurring in the United

States and much of the world including Tanzania has created a realm of activity

popularly referred as ―cyberspace‖

The most conspicuous offshoot of the new information technology is the internet; the

internet is internationally linked system of computer networks in which the data flows

.The information super highway is a metaphor for the communication links of the

internet while ―cyberspace‖ is a metaphor for the medium whereby data processing and

communication between the computer networks occurs. Not only is there no central

entity that manages the linked computer network of the internet ,the nature of

cyberspace also means that ―data ―is not in any geographical location but in space –the

electronically linked computer networks66

.

Currently the most popular way to access the internet is through the World Wide Web

(the web) the web consist of millions of websites; each website is separate but inter

linked and each website may have hundred of web pages. With proper software internet

users may create own WebPages and post in digital form sound, images and text on the

webpage .Internet users may also view the images ,read the text and listen to the sound

of other websites .Web browser‘s are used to access information on the web.

66

Richard C.T. and Anita L.A.(2002)Privacy Law, 2nd Edition, West Group. P.398

31

The information super Highway ,cyberspace, and the internet are possible because of

digital technology .the use and importance of computer technology to the Tanzania and

the world has magnified the privacy issues that are raised by Arthur Miller and other

writers in the 1970.

The central feature of the revolution in communications and data processing from analog

to digital technology, Analog technology is based upon replication of form of

communications or image that is transmitted .The replicated phenomena is transmitted in

continuous uninterrupted form example in analog based telephone communications, the

sound wave produced by the voice is transmitted by an electronic signal with the same

frequency as the voice. The whole replicated conversation is transmitted by an electronic

signal with the same frequency as the voice. The whole replicated conversation is

transmitted with analog technology.

Digital technology takes samples of the actual sound wave or image or text and converts

the samples into arithmetic quantities that are expressed in binary digits or bits with

eight bits forming one ―byte‖ 67

Digital technology has dramatically increased the capacity to access data because

computer data based may be matched or linked and data instantaneously acquired .Once

information is Keyed into one computer it may be transmitted to another computer

without having to re-key the data.

Digital technology makes it possible to merge and mix data.68

The unprecedented capacity for loss of informational privacy is the result of special

features of digital technology in three phases of data processing, data acquisition, data

merging and data profiling.

67

Henry H.P, Jr (2001) Law and Information Superhighway.p.20 68

Richard C.T. and Anita L.A.(2002)Privacy Law, 2nd Edition, West Group p.399

32

2.6 Conclusion

It is well established that the laws, internationally and domestically cover an aspect of

confidentiality however there are some challenges on its implementation such as the

prohibition on use of confidential information especially acquired knowledge in due

process of working, but most important is to avoid ruining of the others business, there is

a need to set standards of the said confidential information .again laws need to provide

strong penalties for the offence and not just establishing an offence.

However referring Posner‘s economic Theory presumes that privacy is not something

that is desired for its own sake .Privacy is valued as a means to produce income or some

other benefit69

.

Hence there is a need of having a comprehensive legislation on privacy matters.

69 Richard .A.P(1979) Utilitarianism, Economics and Legal Theory also in his earlier book titled Right of Privacy

(1978)

33

CHAPTER THREE

RESEARCH FINDINGS

3.0 Introduction

This chapter intends to give out the field results, which a researcher upon applying

different methods of data collection and interpretation he came out with some

observations which are categorized in the following subtitles Methods used to keep Data

and Leakage Ways, Legal Challenges Facing Employers and Employees on the Aspect,

Steps taken by Organizations to Prevent Leakage of the Confidential Information,

Computer use and the Enforceability of Confidential Clauses, the critical area on the

problem of confidentiality and lastly the conclusion of the chapter.

This research took a case study of Dar es salaam therefore the researcher interviewed

employees at the Ministry for Labour and Employment especially labour officers,

secretaries ,the researcher went further and sent questionnaires to different organizations

for employees and employers such as Mic Tanzania commonly Tigo Tanzania ,Airtel

Tanzania, Barclays Bank, CRDB Bank ,IT specialists, Magistrates ,BP Tanzania

employees ,Keko Pharmaceuticals Ltd,International Labour Organization (ILO) also the

researcher went further interviewing Health officials like nurses and doctors in Massana

Hospital and Mbezi Beach Health Center at Doctors Plaza ,the researcher valued each

and every persons contribution and maintain anonymity in his research.

The researcher went further by interviewing some security agencies employees,

Association of Tanzania Employers (ATE) and successful he got the important data to

this research. However the researcher used much of library search and used Internet

browsing to get some more data to help in his research, from those sources the

researcher came out with the following results;

34

3.1 Methods used to keep Data and Leakage Ways

The ways which are mostly applied in keeping data are still local as opposed to modern

means in particular at government offices, the technology is not yet exploited into

practice though there are some movement towards the use of new technology to keep the

data in most safe ways, the observations shows that common methods used in keeping

confidential information are;

i. special registry books

ii. folders in hard copy

iii. Tape recording, video and surveillance camera

iv. Folders in soft copy

v. Emailed document

vi. Files according to confidentiality of the matter.

Special registry book, is a special book where the records of a particular document are

recorded, the recording is done once the document is received signed by both the

deliverer and the receiver. This helps to know that particular document is received and

kept in a certain place by a particular person and exactly time of particular information is

received. This is common in both Government offices and the private companies,

whereby the data shows that all twenty five (25) respondents, confirmed use of this

method.

Folders in hard copy, there special folders in hard copy form which are kept on special

shelves in special chambers, this is again used in both government and private

institutions ,in government this is the main means of storing data however in private

companies is an alternative means to store data as mainly they use soft copy.

The communication via e-mails are also used to keep special confidential information

where by the attachments kept on emails and the whole e mail, however can be hacked

35

and divulge information to third parties. E mails are very commonly used by private

companies, most of the e mails they contain a special clause which requires

confidentiality to be maintained however many employers and employees do overlook

the clause and transfer information to third parties. Fifteen (15) respondents commented

positively on the use of emails as a fast and modern means to keep data in the modern

commercial world however ten (10) respondents criticized the use of this particular

method to store data as they argue that is not well secured in terms of privacy as it is

easy one to hack somebody‘s account and divulge information without any physical

presence at the company.

Tape recording, video and surveillance cameras are amongst the ways used by

organizations to keep and protect the security of confidential information. The special

recordings of communications by tape recording or video are taken as a means to keep

the confidential information.

Tape recording, is used to keep information especially in media and security agencies

,however the video and surveillance cameras are most preferable means of keeping data

and act as security system as well ,most of the private companies use surveillance

cameras for the security purposes ,this include data security it is easy to identify a person

responsible for omission of particular thing when recorded by using the surveillance

camera. Twenty (20) respondents supported the use of surveillance camera however five

(5) questioned much on the aspect of privacy, and limits of surveillance.

Folders in soft copy, due to technological development, the use of computer system,

there special data base created for particular information, and the confidential

information are kept in special folders. Fifteen (15) respondents confirmed use of this

method, However the left number most especially government agencies lag behind the

technology and concentrate much on the hard copy.

36

Folders in accordance to confidentiality of the subject, there are the folders which are

specifically used for keeping confidential matters and there confidential folders are kept

due to sensitivity of the information. This is common in government agencies especially

in security agencies.

However the first two are the most commonly used in government institutions, the rest

mostly used in private institutions where the use of computer technology is at large

extent used as compared to government entities. But still whatever way used to keep

data (confidential information), the leakage of the information exists. This is so because

it is observed that the ways used to leak the said confidential information are through;

i. Unauthorized interception on computer

ii. Former employee who either retired or resigned

iii. Data theft

iv. Face to face with secretary for corruption.

The unauthorized interception on computer Cyber criminals often obtain valuable

information by intercepting and monitoring communications sent via the internet or

other information networks. Electronic mail messages can easily be intercepted by third

parties, thereby enabling them to obtain bank account numbers, password, access code

and various other form of confidential information, a good example is a complaint rose

by Louis Moreno Ocampo the International Criminal Court (ICC) prosecutor that there

some hacking of some personnel‘s and witnesses emails which lead to disclosure of

confidential information70

.

However there is legal and unlawful interception, lawful one permitted by the law while

unlawful interception is not permitted by law and it is among cyber crimes, though the

challenge arises as to the balance on freedom of expression and unauthorized

70 16th March 2012 Sunday News, 1st page.

37

interception, this cover the disclosure of confidential information of various states by

wiki leaks.

Use of ex –employees of a certain organizations ,the question of resignation and retiring

of some employee comes as a way to breach the confidentiality clauses ,the ex-employee

who knows some confidential information if not bound well with the confidentiality

clauses it attracts infringement of privacy as they will be easily a pass way to dispose

such information ,some companies confidentiality clauses do real bind the employees

even after their end of employee tenure for example in Airtel Tanzania confidentiality

clauses to its employees as it stipulates that reads “the employee shall not, either during

the continuance of his or her employment hereunder or within 3 years thereafter ,except

in the proper course of his /her duties or in the event of prior written consent of the

company, divulge to any person whosoever ,any information concerning the business or

finances of the company or any of its dealings ,transactions or affairs which come to his

/her knowledge during or in the course of his/her employment and affairs which come to

his/her knowledge during or in the course of his or her employment and he /she shall not

communicate with any person or authority in connection with any matters concerning

the company without such consent as aforesaid specified.”

Data theft through unlawful devices and unlawful programs as the organizations and

government developed ways to keep the confidential data by electronic technology;

criminals frequently use sophiscated technology to intrude in these protected systems so

as to commit crimes. This may happen by criminals using skimming devices to capture

all the data contained on the magnetic strip and thereafter, with assistance of a computer

terminal, download such data and use them for any unlawful activity including fraud

acts.

Face to face with Secretary and corruption attempts, this is a way which mostly used by

unloyal and unethical workers in regards to leakage of the confidential information as

38

the secretaries or office assistants who to a large extent knows a lot of the confidential

matters of the organization can be blackmailed by money or anything in kind to betray

his employment contract on the aspect on confidentiality clauses.

In this regard is obviously observed that in whatever means used to keep the confidential

information still leakage may occur whenever any of the way used to get the data.

3.2 Legal Challenges Facing Employers and Employees on the Aspect

The legal challenges that arise on the aspect of enforceability of confidentiality clauses

by employers and employees, many cases are;

i. Identification of defendant

ii. Admissibility of electronic evidence.

iii. Corruption attempts

iv. Influence of alcohol

When the confidential information are leaked it is a challenge first to identify the

defendant, the actual person who breached the clause, this is so because the breach is

done mostly in secret manner.

Generally, before the year 2000, electronic evidence was inadmissible .In the year 2000

in the High court commercial division, Nsekela J, in the case of Trust Bank Tanzania

Ltd v. Le Marsh Enterprises Ltd71

the court saw the need for the judiciary to be ready

to adopt changes caused by technological revolution engulfing the world and it

proceeded to extend the definition of banker‘s books to include evidence emanating

from computer. Despite such observations by learned Judge –no significant changes

were made to existing law till 2007.were the significant development was the

amendment to the Evidence Act by Act no.15 of 2007,the Evidence Act was amended

71

Case no. 4 of 2000

39

by ;adding s.40 on admissibility of electronic Evidence in criminal proceeding .In this

regard for civil cases the challenge is still ahead.

Challenge to find evidence to a person who leak information via word of mouth only

without use of documents.

Corruption attempts put ahead a very challenging obstacle to obtain justice, the people

are paid to leak the information and this sometimes go higher as compared to their

salaries.

Some breach the confidentiality clauses under the influence of alcohol; it is a challenge

to master a person from his alcohol drinking behavior, therefore others take advantage of

alcoholism to obtain confidential information from the people who are drunk.

3.3 Steps taken by Organizations to Prevent Leakage of the Confidential

Information.

The steps taken by the employers to prevent the leakage of confidential clauses are;

i. Installing surveillance cameras

ii. Password ( authentication )

iii. Education on the importance of keeping confidentiality clauses.

iv. Termination without pay (summary dismissal)

v. Legal proceedings for those who disclose confidential information.

vi. Special entrance door card.

vii. Special Programme on computer to records events on desktop.

Most of the private companies has put forward the first two ways plus the rest ways

however the government bodies is very much invested in the three last ways though

some government offices use the first two ways too.

40

Surveillance cameras, these are special camera which are installed to record the video

for a particular area 24 hours, these enables to record all activity that take place in there

so if the leakage occurs or any attempt to theft appears it is easy to identify the defendant

for easy legal action, it is a commonly used in private companies and some government

offices as well.

The use of passwords is a method used to allow some people only, an access to the door

of certain special room which keeps confidential information even the computer access

and pass code for the folders keeping the confidential information.

The education on the enforcement of confidentiality clauses, it is observed that some

employees or employers are not aware of ways used to leak the confidential information

as there some cases where by the information are trapped unknowingly by a third party

in presence of the employee or employer this mostly is by computer interception and

data theft .for this it has been seen there is a need to give education to the people who

handle the confidential information be employer or employee.

Upon the noticing of a person who breached the confidentiality clause, the summary

termination takes place at once followed by legal action, this is a step adopted to prevent

the leakage, however this applies only to an existing employee for a parting or resigned

is a challenge.

Legal action is taken only when there is an evidence to identify the offence and the

person so responsible.

Special card for entrance and exit, the organization and some individuals has now taken

step to security of people and property and data in particular by using new technology of

installing special doors which require identification of a person before entrance and exit

so the system records who and at what time he entered and left the room in assistance of

surveillance cameras it is easy to recognize the people who breach confidence.

41

Special Programme on a computer which shows exactly the documents opened at a

particular time and by who, therefore it is easy to have an evidence of breach of

confidence.

3.4 Computer use and the Enforceability of Confidential Clauses

With the coming of mobile phones and internet, ICT application in Tanzania got many

clients. And the concern of about information security was and yet is more alarming.

There are hackers, malicious programs like computer viruses, worms, just to mention a

few.

Attackers are assumed to have various levels of expertise, resources, and motivation.

Attackers can either be insiders or outsiders. Relevant expertise may be in general

semiconductor technology, software engineering, hacker techniques, or the specific

system. Resources may range from personal computers and inexpensive card

reading/coding devices to very expensive and sophisticated engineering test,

measurement devices, and replica of Company vending devices. They may also include

software routines, some of which are readily available on the Internet. Motivation may

include economic reward, resentment, or notoriety of defeating high-grade security72

The attackers mentioned might be employers or employees or any person with

connection with any of the two so as to grab particular information.

The development of technology has led the intensive use of computer at work places

especially on very sensitive matters concerning business .The computer keeps

information in a special data base created by the organization, which may either require

special password to access the information.

72

Job A.C, 2000 …Framework for Evaluation of Information Security Systems, A Case Study of Tanzania Electric

Supply Company (TANESCO). Available at

www.icsa.cs.up.ac.za/issa/2005/Proceedings/Full/062_Article.pdf- last visited on 01/02/2011

42

Also on the other hand the changing ways of leakage becomes a problem as the

computer use intensify the problem as the ways of which are used are a bit challenging

as a person can interrupt certain confidential information without even physical presence

at the scene through interception but again the lack of knowledge amongst the

employees where by a person can easily disclose his/her password to a third party or just

leave another employee or third part use his computer without his presence.

Just observation, due to computer illiteracy, the secretary in a certain office was able to

allow a person to put his flash on the office computer and took some confidential

information, which a secretary did not realize the intention as she did not know what he

was doing, so if the secretary could have sufficient skills on the computer, she could

have prevented the leakage.

Therefore it is obviously seen that the use of computer technology sharpens the problem

and even makes very hard to control and avoid.

3.4 Critical area on Confidentiality Clauses Enforcement in Tanzania

From the researchers data and interpretation the problem seen is both the law and the

practice, this is so because the law under the Employment and Labour Relations Act73

,

stipulates the penalties of which in some cases is not able to give a real deterrence for a

kind of loss so caused from the offence, however the strict laws on banking are so

because they deal with money but even in some other organizations the confidential and

very important information can be leaked and cause moral or financial loss to a great

extent ,is my call to the government to make strict laws on the aspect of privacy.

The practice also shows that the employers assist on one way or other to leakage of

confidential information, as they fail to give education to their employees on privacy,

also the issue of corruption which paves a way to employers silence on the offence.

73

Act no 6 of 2004, s.102(4)

43

As one of the respondent said, the law might be present but if at all our people are not

educated we cannot prevent leakage of information.

The education on confidentiality clauses need to be given to employees so as to master

their true habits ,thus unintentional breach will be covered ,whoever breaches will be

presumed to have an intention thus attracts heavy penalty.

3.5 Conclusion

The findings shows that the methods employed to keep data especially in many

government offices do not comply with the current social change unlike private

institutions, however despite that the problem of breach still exists and as such we need

a strong legislation which will speak reasonable penalties so as to reduce the increase of

the problem, the refresher training should take part from time to time to update

employees on the aspect of privacy issues and to make sure that the organization policy

are put into real action.

44

CHAPTER FOUR

SUMMARY OF FINDINGS, CONCLUSION AND RECOMMENDATIONS

4.0 Summary of Findings

Generally, ―Enforcing Confidentiality Clauses in Tanzania with Critical Analysis on the

Legal Challenges Facing Employers and Employees, can be summarized as follows, the

respondents whom I used, that is 25 respondents amongst whom 20 respondents said

that the problem is still increasing and even worse through the use of computer, it is

observed that lack of privacy knowledge and even smooth legal consequences

contributes to the increase of the problem.

It was observed that the penalties under different laws are not sufficient to end the

problem, the Banking and Financial Institutions Act74

at least put a strict penalty on the

person who committed an offence but again it is of course due to the reason that the

Financial Institution and Banks are institutes which deals with money, at this juncture it

is not appropriate to put strict laws only for Banks as the leakage of confidential

information occurs in different organizations and cause a great loss to particular

organization.

It was observed that the knowledge of confidential information sensitivity is not well fed

to employees, of importance the knowledge on the subject matter especially the negative

effects of such information to the organization. However some institutions are very strict

to the provision of information to outsiders whereby you need to write a special

application expressing reasons for the information you need and to promise not to use

such information otherwise, after the confirmation by the organization leadership then

the person will be allowed to take the information and only for the purpose asked for,

74 Act no. 5 of 2006.

45

unlike many institutions where by the staffs can easily divulge the information even

unknowingly.

4.1Conclusion

There Legal challenges face the employers and employees in enforcing the

confidentiality clauses in Tanzania, and is observed that the computer use has intensified

the problem.

Despite the initiatives undertaken there is yet still a problem particularly on the legal

system. The legal infrastructure in Tanzania is yet to incorporate Information Security as

an area worth legal safeguard. In this way it is not surprising to find hackers or those

defrauding the IT system walking away unpunished by the law.

It is therefore prudent and sound that the initiatives should not only be on technical area

put also the legal infrastructure should address such matters related to information

security in Tanzania.

The problem is not absence of provisions of law but its loose nature to the extent that the

penalties put for an offence on breach of confidentiality clauses does not discourage the

continuance of the problem on the other hand the poor knowledge on information

keeping by employees and some employers also add to the problem, this includes poor

job ethics by the employee for example the alcoholism is seen as other factor which

contribute the presence of the problem, the corruption song is still the major challenge as

mostly people receive something in kind for the information they share to the third

parties.

The hypotheses proves the problem existence, as little penalties, unethical actions,

computer use seem to be the great reasons for the extension of the problem.

46

The organization privacy policy are not put into implementation by some organizations

this leaves a chance to the organizations staffs to have an opportunity to divulged the

confidential information. Lastly in some organizations it clearly observed that the

information is not kept in a precise manner as in regards to this cyber era.

4.2 Recommendations

Keeping in mind the research findings and conclusion by the researcher, he goes further

recommending on the topic namely ―Enforcement of confidentiality clauses in Tanzania

A critical analysis on the legal challenges facing employers and employees”. Taking

into account the current technological advancement, the researcher recommends the

following. It is important to this of privacy in broad perspectives. We should not limit

ourselves to privacy infringement in traditional sense like where the employer come to a

employees‘ home and search the premises or where a employee is stopped by employer

and searched. You hear a person saying you are interfering with my personal integrity.

We need to retain such integrity even online. But that has been made difficult by our lag

in enacting Privacy legislation in Tanzania. We have to blame ourselves for such lag75

.

It is worth of note that so long we visit websites so long we use ICT facilities at work, so

long we use our credit cards, our Internet banking, we shop in the supermarkets then we

are not going to be left alone. We will be able to enforce successful employees and

employers confidentiality clauses and other interests with privacy only if we enact

privacy legislation. In this way our privacy online will be guaranteed.

75 Ubena J (June 8, 2010) Law as the Lifeblood of Human Being: Tanzania Lag on Privacy Law. at

http://tanlex.wordpress.com/2010/06/08/tanzania-lag-on-privacy-law/

47

It is suggested that the privacy policy of different organization be put into action and the

refresher training amongst the employees be provided time to time to shape them with

the proper methods on how to observe job ethics and also materials like brochures and

some adverts to be put on desks of the employers and employees just to remind them of

the keeping the confidentiality clauses.

Further recommends that the organization privacy policy shall be put into a strict sense

and in action. The ways of keeping the confidential information is of great seriousness

and only with special permission confidential information is shared, on the other hand

the penalties are extended and the summary dismissal is provided for the persons who

have committed the offence.

Further requests the education to be provided to the employees and employers on the

privacy importance from time to time also emphasizes reasonable use of passwords and

surveillance cameras to be used identifying the defendants.

Encourages the use of proper ways to identify the cyber criminals over the

confidentiality clauses to be adopted by the employers meanwhile the employers to be

careful in disclosure of their employee‘s confidential information to third parties as the

use can be against the employees wish hence breach of confidentiality clause.

Calls upon the employers and employees have a table talk on employees‘ benefits and

salary increment and maintain friendly relations in solving disputes arising at work

place.

Generally information security is secured by Information security program, blending

best management practices with key physical and information technology safeguards.

Drilling down to the critical building blocks of information security, covers security

policies, awareness, administration, models, mechanisms, and architectures; availability,

48

backup, recovery, and business continuity planning; firewalls; user authentication;

cryptography; network concepts and security76

Lastly the employers should take proper and reasonable steps to prevent the occurrence

of the problem for example to install special computer programs to record the events on

the desktop containing confidential information. However this should be done only on

the computers with confidential information so as to balance freedom of privacy to an

employee.

76 http://www.tgdlc.go.tz/Index.php?id=news_course last visited on 01/02/2012.

49

REFERENCES

Books

Bainbridge,D. (2002)Intellectual property,5th

Ed, Pearson Education Management

Bainbridge,D. (2009)Intellectual property,7th

Ed, Pearson Education Management

Henry H.P, Jr (2001) Law and Information Superhighway, 1st Edition oxford

university press, London

Holvast J., Madsen W. & Roth P. (2000-) 'The Global Encyclopaedia on Data

Protection Regulation', Looseleaf, Kluwer Law International

Ian J. Lloyd (2008), Information Technology Law, 5th Ed, oxford university press,

London.

Lim,Y.F(2007)Cyberspace Law Commentaries and Materials, 2nd

ed, oxford

university press, London.

M.B Miles and A. M Huberman(1998) An Expanded Source Book-Qualitative Data

Analysis

Milton .R.K (1966) Privacy and Law: A Philosophical Prelude, 1st Edition, West

Group

Richard C.T. and Anita L.A. (2002) Privacy Law, 2nd

Edition, West Group

50

Articles and Journals

Araujo and I. Araujo (2011)Developing trust in Internet commerce Proceedings of

Conference of the Centre for Advanced Studies on Collaborative Research.

Better Policies for better Lives; OECD Guidelines on the Protection of Privacy and

Transborder Flows of Personal Data : Available at

http://www.oecd.org/document/18/0,2340,en_2649_201185_1815186_1_1_1_1,00.ht

ml

Bygrave L. (1998) 'Data Protection Pursuant to the Right to Privacy in Human

Rights Treaties' International Journal of Law and Information Technology, 1998, 6,

247-284

D. Banisar (1999), Privacy and data protection around the world. Proceedings of

the21st International Conference on Privacy & Personal Data Protection.

Davies Collison Cave Darron Saltzman and Timothy Creek (May 10 2011) Damages

awarded for misuse of confidential information by former employees to create

competing product.

Glyn Marais (2009), Crime Prevention Asset Forfeiture and Collateral Damage to

Creditors 1st Edition Lawyer‘s club India Article, Data Theft in Cyber Space Issues

and Laws.

Naomi Cossack, Margaret R. Fiester, John Sweeney, (2006) Prompted resignation,

surveillance confidentiality.

Richard Elliott( 2010) International Council of AIDS Council Organisation Guideline 5

of the International Guidelines on HIV/AIDS and Human Rights Available at

http://www.icaso.org/publications/Advocates_Guide_EN.pdf accessed on 20th

November 2011 at 20:00hrs

51

Ubena J (June 8, 2010) Law as the Lifeblood of Human Being: Tanzania Lag on

Privacy Law at http://tanlex.wordpress.com/2010/06/08/tanzania-lag-on-privacy-law/

Websites

Data Theft in Cyber Space Issues and Laws accessed on http://

www.wisegeek.com/what-is-a-confidentiality-clause.htm

http://findarticles.com/p/articles/mi_m3495/is_10_51/ai_n27011518/ on 01st Jan, 2012,

20:00hrs

E-Security and Cyber Crimes Training Workshop at http://agumba.biz/index.php?id=33

Howard Shila, Effectiveness of Informatics Policy Instruments in Africa, Tanzania.

Available at

http://www.uneca.org/aisi/tanzania.htm visited on 03/11/2011

National Information and Communications and Technology Policy

http://www.tanzania.go.tz/policiesf.html

http://tanlex.wordpress.com/2010/06/08/tanzania-lag-on-privacy-law/

http://www.tgdlc.go.tz/Index.php?id=news_course last visited on 01/02/2012