The Electronic Transactions and Cybersecurity Act of 2016 establishes a safe harbour regime for intermediaries beyond copyright infringements. Sections 25 to 30 of the Act protect an Intermediary service provider from liability to civil or criminal proceedings for any electronic information under its service provided that it neither initiated transmission of the message nor modified it and that it was not aware of the unlawful character of the stored information. Additionally, protection is provided if the intermediary service provider expeditiously removed or disabled access to the information when served with a takedown notice issued under the Act.

According to Sections 92-94 of the Communications Act of 2016, All SIM cards in Malawi need to be registered on a central database, and a customer’s national identity number needs to be verified when purchasing, replacing, or swapping a SIM card.

Malawi has not signed the World Intellectual Property Organization (WIPO) Performances and Phonograms Treaty.

The Law in Malawi, according to Sections 52 and 53 of the Electronic Transactions and CyberSecurity Act of 2016, requires cryptography services or products to be registered by the Communications Authority. Additionally, the use, importation, and exportation of encryption programs and encryption products is subject to authorisation by the government. In addition, Section 67 of the Act mandates encryption services providers to declare to the Authority the technical characteristics of the encryption means as well as the source code of the software used. Violation of these regulations is a criminal offence punishable by up by imprisonment and a fine.

Malawi has no rules applicable to the protection of trade secrets.

It is reported that there is an obligation for passive infrastructure sharing in Malawi to deliver telecom services to end users. It is practised in both the mobile and fixed sectors based on commercial agreements.

Section 35 of the Communications Act mandates an electronic communications licensee (Network and Application Services) to maintain a shareholding by nationals of at least 20%.

It is reported that the government has a 20% share in Malawi Telecommunications Limited (MTL).

It is reported that Malawi does not require accounting separation for operators with significant market power (SMP) in the telecom market. However, functional separation is legally required.

Malawi has not appended the World Trade Organization (WTO) Telecom Reference Paper to its schedule of commitments.

It is reported that the Malawi Communications Regulatory Authority (MACRA), the executive authority for the supervision and administration of services in the telecommunications sector, is independent from the government in the decision-making process.

Section 12.4 of the Malawi National Health Information System Policy provides a requirement for any health-related data, whether physical or electronic, to be stored only within the borders of Malawi except for the purpose of continuation of care. Section 14.1 ascribes ownership of any health-related data to the Ministry of Health. This policy was elaborated for the health sector of Malawi, i.e. public and private. The stipulations therein, therefore, apply to all public and private health facilities alike (Section 2).

Section 162.3 of the Malawi Companies Act requires a company to have at least one director ordinarily resident in Malawi.

Malawi is a party to the Patent Cooperation Treaty (PCT).

Malawi has a copyright regime under the Copyright Act of 2016. However, the exceptions do not follow the fair use or fair dealing model, therefore limiting the lawful use of copyrighted work by others. Arts. 36-53 list the exceptions, which include personal and teaching purposes; reproduction, translation, adaptation, arrangement or other transformation of a work exclusively for the user’s own personal or private use of a work which has already been lawfully made available to the public; among others.