AN ANALYTICAL DISCOURSE (Part 1)
PREAMBLE
Apart from the popular and deadly diseases like HIV AIDS, there is even a deadlier one known as the “Coronavirus” code-named “COVID-19”.
It is a global disease now declared a pandemic that broke out in the Chinese city of Wuhan late 2019 which attacks and weakens the respiratory system of its carriers.
It is a contagious disease that is communicable by mere close and body contact with anyone who is infected with it, though on a six feet distance and it can also be contacted through the respiratory droplets of an infected person who coughs or sneezes, or from touching objects that have touched or contaminated by an infected person.
Sadly, it is communicable on an easy slack or mistake.. The outbreak and quick spread of the feared Covid-19 has affected the economy of Nigeria due to the lockdowns by both the state and federal governments, investors are running away and this came at a time when the Nigerian economy is on the verge of collapse.
The Nigerian Governments have taken serious measures to curtail the spread of the virus ranging from restriction of movement of people, closure of markets, prevention of a certain number of assembly of people, restriction of religious and social gatherings.
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However, an important aspect of the government’s action being Fundamental Human Rights of persons and citizens of Nigeria (freedom of movement, rights to peaceful assembly and association, rights to personal liberty, rights to privacy among others).
However, the focus of this article is on whether some of the actions of the government have infringed upon the rights to privacy of citizens, whether the infringement is justified? Whether Data Processing can be done without the consent of the data subject.
In answering the above questions, this article shall examine whether or not rights to privacy is related to data protection within the purview of the laws on data protection in Nigeria.
DATA PROTECTION AND RIGHTS TO PRIVACY: ANY NEXUS?
Rights to privacy presuppose that the privacy of citizens, their homes, correspondences, telephone conversations and telegraphic communications is guaranteed and protected.
Invariably, the Nigerian Constitution is the fons et origo of all laws in the country. It forms the basis of Nigerian laws. In fact, other laws derive their validities therefrom.
One wonders whether rights to privacy as mentioned in the Constitution is narrowly and succinctly couched, that compares to its broader concept of data protection.
The former deals with just the privacy of citizens not all persons in Nigeria and the concept of data privacy is universal not restricted to a particular geographical location.
Equally, it is restricted to their homes, correspondences telephone conversations and telegraphic communications, this, in my opinion, cannot be said to include data simpliciter.
Personal Data has been defined in different subsidiary legislation regulating data privacy and protection. However, the connotation is given under the Nigeria Data Protection Regulation, 2019 which shall herein thereafter be referred to as the Regulation.
Regulation 1.1 of the defines Personal data as “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
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It can be anything from a name, address, a photo, an email address, bank details, posts on social networking websites, medical information, and other unique identifiers such as but not limited to MAC address, IP address, IMEI number, IMSI number, SIM and others”.
It is clear from the above provision that data protection is more detailed than the rights to privacy which has been seen from the definition of personal data. Applying the literal rule of interpretation to the provision, it is error-free to conclude that the definition is detailed and sufficiently comprehensive.
While it is obvious that data protection is thorough, but the provision of the Constitution cannot be said to be large enough to accommodate the above definition of personal data in the Regulation.
In short, rights to privacy and data protection are interrelated. This takes us to the laws that are regulating data protection and privacy in Nigeria.
DATA PROTECTION AND PRIVACY IN NIGERIA: AN OUTLINE OF THE REGULATORY LAWS.
Truth must be told that although Nigeria does not have a specific statute regulating Data Privacy and protection, the National Information Technology Development Agency (NITDA) commendably came up with the Nigeria Data Protection Regulations (NDPR, the Regulation) in 2019 which specifically addresses Data Privacy and Protection in Nigeria.
Asides from the NDPR, there are other few laws which touch on Data Privacy and Protection in Nigeria, some of which are briefly outlined below in seriatim.
The Constitution of the Federal Republic of Nigeria.
The NCC Consumer Code of Practice Regulation 2007
The NCC Registration of Telephone Subscribers Regulation 2011
The Freedom of Information Act 2011
The Cybercrimes (Prohibition, Prevention, etc.) Act 2015
There are other laws on data protection and privacy in Nigeria but most of the laws are industries-based except the most comprehensive one among them which is Nigeria Data Protection Regulations (NDPR, the Regulation)
in 2019. Although, the Nigerian legislative chambers still have a lot to do in this regard in coming up with comprehensive legislation on data protection and privacy.
Olasupo Habeebulah Morakinyo is a Lagos-Based Legal Practitioner. He is an Associate at M.J. ONIGBANJO & CO. He is a vibrant, solution-driven and smart legal practitioner with a strong affection for Justice, Good Governance and Development of the law. He is an alumnus of the University of Ilorin, where he graduated with a Second Class Upper and won numerous meritorious academic and unionism awards, among which is ‘THE LEGAL LUMINARY OF THE YEAR”. Morakinyo has an enduring interest in learning and understanding legal responses to social, political and economic development.
He is a team player and has disciplined communication and interpersonal skills as well as a drive to learn new things and to support colleagues and clients.
