By Yanrong Zeng
As Africa’s online banking and shopping sectors have gained popularity, e-commerce has become a crucial aspect of business operations in the region, attracting foreign investment. To successfully export goods to Africa, U.S. companies must have a deep understanding of the legal factors that impact the e-commerce sector. This blog post delves into the legal considerations that contribute to the success of e-commerce in different African countries and recommends suitable entry points for businesses entering the e-commerce market.
The success potential of e-commerce hinges on two factors: information infrastructure and legal considerations. Information infrastructure sets the ceiling of e-commerce possibilities in a target market as access to internet, mobile phones, bank accounts, and postal addresses are necessary for online shopping. To assess a market’s online shopping readiness, the UNCTAD B2C Commerce Index is an effective tool. Countries with the highest B2C Commerce Index are South Africa, Algeria, and Kenya, followed closely by Kenya, Nigeria, and Morocco. Meanwhile, Senegal, Egypt, and Ivory Coast are further down the list. It’s worth noting that Egypt has surprisingly dropped in the rankings in the past decade.
Legal factors can act as limiting factors for e-commerce opportunities. These include e-commerce law, consumer protection law, data privacy laws, and breach notification laws. However, companies can use these laws to their advantage by using them as a guide to identify the most suitable e-commerce market to enter.
To minimize potential disputes and legal complications, it is recommended that U.S. companies identify target markets with reliable legal protection for electronic agreements and strong consumer protection laws. Out of the nine countries mentioned earlier, only Nigeria is yet to publish a distinct e-commerce law, although a bill is currently under legislative process. The Algerian e-commerce market is not open to foreign companies, which means that it is not advisable for companies to consider Algeria as a potential market to enter. Among the mentioned countries, Egypt, Nigeria, South Africa, Ghana, and Morocco seem to be suitable markets for entry, as they have established specific laws or regulations to protect consumers, especially in online transactions. Conversely, countries like Kenya, Algeria, Senegal, and Ivory Coast appear to have weaker consumer protection laws, which can create legal ambiguities and compliance challenges.
Data security breaches pose a significant risk, as indicated by the high numbers of malware attacks on industrial control systems in the target markets. Therefore, it is crucial for U.S. companies to take proactive measures to protect their data and adhere to foreign laws. To mitigate these risks, U.S. companies can prioritize entry into markets that have uniform data privacy and protection laws across a group of countries. This is because complying with the legal requirements of one country in the group ensures compliance with all others. The African Union (AU) member states and Economic Community of West African States (ECOWAS) member states are obligated to respect, protect, and promote the right to privacy and personal data protection, as stated in their declarations and conventions.
To ensure compliance and mitigate risks, U.S. companies need to to carefully evaluate their business requirements and risk tolerance before entering a new market with data breach notification laws. For larger companies with a greater focus on data protection, countries such as Nigeria, Egypt, and Algeria, which have well-defined and stringent data breach notification laws, may be a suitable choice. However, for smaller to medium-sized companies that prioritize balancing compliance costs with maintaining consumer trust, countries such as Kenya, Ghana, and South Africa, which have moderate data breach notification laws, may be a more practical option. Ultimately, U.S. companies should carefully assess their risk appetite and business requirements before making a decision on which market to enter.
To operate in Africa, U.S. companies must adhere to the Foreign Corrupt Practices Act (FCPA), which extends beyond U.S. borders. To avoid violating this law, U.S. companies need to prioritize anti-corruption measures. Transparency International’s 2022 Corruption Perceptions Index (CPI) revealed that sub-Saharan Africa is currently facing a notable challenge with corruption, which may impact businesses operating within the region. As a result, U.S. companies must conduct thorough due diligence to ensure compliance with anti-corruption laws when entering the e-commerce market in the region.
In conclusion, the e-commerce market in Africa presents both risks and opportunities for U.S. companies. While the region has seen tremendous growth in e-commerce, it is essential for U.S. companies to carefully consider the legal landscape and regulatory environment in each target market. By prioritizing legal compliance, consumer protection, data privacy, and anti-corruption measures, U.S. companies can mitigate risks and maximize opportunities for success. Ultimately, those who navigate the legal complexities with diligence and strategic planning stand to benefit from the growing e-commerce market in Africa.
 White and Case, Africa Focus: Navigating a Changing Business Landscape in Africa and Beyond (Spring 2021), https://www.whitecase.com/publications/insight/africa-focus-spring-2021.
 U.N. Conf. on Trade and Dev., UNCTAD B2C E-Commerce Index 2020 Spotlight on Latin America and the Caribbean, 1, https://unctad.org/system/files/official-document/tn_unctad_ict4d17_en.pdf.
 Id. at 15–16.
 Id. at 16.
 Aderibigbe et al., Digital Business in Nigeria: Overview, Thomson Reuters (Jan. 1, 2023), https://uk.practicallaw.thomsonreuters.com/w-020-0579; Electronic transaction: Senate prepares legal framework to guide deals, Tribune Online (Feb. 27, 2020), https://tribuneonlineng.com/electronic-transaction-senate-prepares-legal-framework-to-guide-deals/; Kenya Commc’n (Amend.) Act (2008), http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2009/KENYACOMMUNICATIONS_AMENDMENT_ACT_2008.pdf; Electronic Commu’n and Transactions Act (2002), https://www.gov.za/sites/default/files/gcis_document/201409/a25-02.pdf; Dyer et al., Digital Business in South Africa: Overview, Thomson Reuters (Mar. 1, 2021), https://uk.practicallaw.thomsonreuters.com/w-007-8319; Electronic Transactions Act (2008), https://ictpolicyafrica.org/fr/document/x6dx4fyl9b9; Electronic Signature Law No. 15 (2004), https://itida.gov.eg/English/Documents/2.pdf; World Intell. Prop. Org., Law No. 2008-08 on the Electronic Transactions, https://www.wipo.int/wipolex/en/legislation/details/10283; Evidence Act (2011) § 93, https://www.refworld.org/pdfid/54f86b844.pdf.
 Lloyds Bank, E-Commerce in Algeria (last updated Apr. 2023), https://www.lloydsbanktrade.com/en/market-potential/algeria/ecommerce; Loucif and Gauvin, Publication of the law on the post and the electronic
communications and the e-commerce law, LPA-CGR, https://tahseen.ae/media/3093/algeria_law-on-the-post-and-electronic-communications-and-the-e-commerce-law.pdf.
 Consumer Code of Prac. Regul. (2007), https://ncc.gov.ng/docman-main/legal-regulatory/regulations/102-consumer-code-of-practice-regulations-1/file; U.N. Conf. on Trade and Dev., Review of e-commerce legislation harmonization in the Economic Community Of West African States, 40, https://unctad.org/system/files/official-document/dtlstict2015d2_en.pdf; Sulaiman and Mashaba, E-commerce transactions under the Electronic Communications and Transactions Act and Consumer Protection Act, Dentons (Aug. 26, 2022), https://www.dentons.com/en/insights/articles/2022/august/26/e-commerce-transactions-under-the-electronic-communications#:~:text=Contact%20us-,E%2Dcommerce%20transactions%20under%20the%20Electronic%20Communications%20and%20Transactions%20Act,68%20of%202008%20(CPA); Electronic Transactions Act (2008), https://www.researchictafrica.net/countries/ghana/Electronic_Transactions_Act_no_772:2008.pdf; Morocco Ministry of Indus. and Trade, Consumer Protection, https://www.mcinet.gov.ma/en/content/consumer-protection.
 Kenya Info and Commc’n Act (1998), https://www.ca.go.ke/wp-content/uploads/2021/02/Kenya-Information-and-Communication-Act-1998.pdf; Consumer Prot. Law No.181 (2018), https://leap.unep.org/countries/eg/national-legislation/consumer-protection-law-no181-2018#:~:text=181%20of%202018.,-Country&text=This%20Law%20consisting%20of%2076,as%20increasing%20the%20consumer’s%20rights; Brill, Algeria – Consumer Protection, https://referenceworks.brillonline.com/entries/foreign-law-guide/algeria-consumer-protection-COM_013036; ICT Policy Africa, Ordinance n ° 2012 293 of March 21 2012 on Telecommunications and Information Technologies (Unofficial Translation), https://ictpolicyafrica.org/en/document/nvnyrchgy6r.
 Culture Custodian, More African Countries are Taking Data Privacy and Protection Seriously (Feb. 8, 2023), https://culturecustodian.com/more-african-countries-are-taking-data-privacy-and-protection-seriously/.
 Id; African Union, Personal Data Protection Guidelines for Africa (May 9, 2018), https://www.internetsociety.org/wp-content/uploads/2018/05/AUCPrivacyGuidelines_2018508_EN-1.pdf.
 Practical Law Data Privacy & Cybersecurity, Global Data Breach Notification Laws Chart: Overview, Thomson Reuters (Nov. 28, 2022), https://us.practicallaw.thomsonreuters.com/w-016-6863.
 DIA Piper, Data Protections Law of the World, https://www.dlapiperdataprotection.com/; Law 151/2020 on the Protection of Personal Data, https://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=111246&p_count=7&p_classification=01; Data Guidance, Algeria: Data protection law published in Official Gazette (Apr. 16, 2019), https://www.dataguidance.com/news/algeria-data-protection-law-published-official-gazette.
 Nzilani Mweu, Kenya – Data Protection Overview, Data Guidance (Mar. 2023), https://www.dataguidance.com/notes/kenya-data-protection-overview; Bhagattjee, South Africa – Data Protection Overview, Data Guidance (July 2022), https://www.dataguidance.com/notes/south-africa-data-protection-overview; Cybersecurity Act (2010), https://csdsafrica.org/wp-content/uploads/2021/08/Cybersecurity-Act-2020-Act-1038.pdf.
 Nick Oberheiden, 10 Reasons Why FCPA Compliance Is Critically Important for Businesses, National L.R. (July 24, 2020), https://www.natlawreview.com/article/10-reasons-why-fcpa-compliance-critically-important-businesses.
 Transparency Int., CPI 2022 for Sub-Saharan Africa: Corruption Compounding Multiple Crises (Jan. 31, 2023), https://www.transparency.org/en/news/cpi-2022-sub-saharan-africa-corruption-compounding-multiple-crises#:~:text=A%20regional%20average%20score%20of,by%20significant%20declines%20in%20others.
Image source: https://www.uneca.org/stories/the-afcfta%2C-an-opportunity-for-africa%E2%80%99s-youth-to-accelerate-trade-and-industrialization