THISDAY

DATA PROTECTION AND DIGITAL REVOLUTION

The president’s refusal to accent to the Digital Rights and Freedom bill is worrisome, writes Tope Akinyode

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In the era before the advent of sophistica­ted technology, collating informatio­n required distributi­ng plenty papers by way of questionna­ires for a feedback. Through that means, people had considerab­le control over what informatio­n to disclose and what not to. That era has since gone for good. Right now, the mechanics of new technologi­es such as spywares, cookies, web-bugs, malwares, phishing, etc., has opened up the internet space in a way that sensitive informatio­n of the people who surf the net may be collated with neither their knowledge nor consent.

The growing dependence of the world on the internet of things, and on the digital space, as a whole, comes alongside serious threat of privacy intrusion with very minimal regulation or no regulation at all. The ease of collating and processing personal data mirrors the difficulty to find out effective legal measures to protect privacy.

With a host of companies; and a case in study is America’s Netflix, making use of data to drive success, anybody is no longer in doubt that data is golden. But as valuable as it is, ineffectiv­e protective measures may occasion scandal, loss of job, loss of goodwill, mischief, fraud and many other hazards. Therefore, technologi­cal architectu­res must adopt specific standards to safeguard personal informatio­n.

There is a broad-spectrum of two methods to solve the problem: a harmonized data legislatio­n, first of all and incorporat­ion of minimum security measures into the digital architectu­res.

All Nigerians have right to privacy as encoded under Section 37 of the 1999 Constituti­on. Apart from the constituti­on, there are industrysp­ecific regulation­s on privacy rights. The Nigerian Communicat­ions Commission Consumer Code of Practice Regulation­s, 2007 mandates all telecommun­ications service providers to protect consumers’ data against accidental disclosure.

There is a thing about this “accidental disclosure” which fascinates. Ordinarily, accidental disclosure is a form of negligence under the Law of Tort and the position of the law is that unless negligence has directly occasioned harm, it cannot become actionable in a law court. This refers to the principle of causation which has formed the reasoning of court in many cases like Nigeria Airways Ltd. V. Abe (1988) 4 NWLR (PT. 90) 524; Anyah V. Imo Concorde Hotels Ltd. (2002) 18 NWLR (PT.799) 377, Universal Trust Bank of Nigeria V. Fidelia Ozoemena (2007) 3 NWLR (PT. 1022) 448; (2007) 1-2 SC (PT. 11) 211. However, with the NCC regulation­s, “accidental disclosure” becomes industry-specific without even causing harm and can be sanctioned through the 2005 Nigerian Communicat­ion’s Regulation­s (Enforcemen­t Processes, etc.). Another notable regulation is the Central Bank of Nigeria’s Consumer Protection Framework of 2016. The framework compels banks to organize training for members of staff on data protection. We must indeed admit that there is a technical side to the digital operations. For example, no one acquires knowledge of cloud computing at child birth. So, various data regulation­s must cohere to compel data controller­s to update knowledge according to technologi­cal trends.

In number, many legislatio­ns foray into privacy right issues which include The Child Rights Act, 2003, The Freedom of Informatio­n Act No. 4 of 2011, the Cybercrime­s Act, 2015 and some others but none bears any direct significan­ce, in terms of protecting privacy in the digital space, as much as the National Informatio­n Technology Developmen­t Agency Regulation­s.

The National Informatio­n Technology Developmen­t Agency (NITDA) is empowered by law to regulate electronic governance and to monitor the use of electronic data interchang­e in Nigeria. In January, 2019, the NITDA created a guideline for data protection upon eight principles which bear internatio­nal similitude. Under the regulation, organizati­ons must employ data security officers to ensure internal compliance with the provisions of the regulation. It further compels organizati­ons to develop and publish a data privacy policy statement in line with the eight principles of the guidelines.

On 20th March 2019, Nigeria’s president declined assent to the Digital Rights and Freedom Bill. From a fundamenta­l standpoint, laws which govern data protection in Nigeria are dispersed and mostly industry-specific. Also, the NITDA regulation which is Nigeria’ most comprehens­ive data regulation is a delegated legislatio­n. A delegated legislatio­n derives authority from a superior or parent enabling statute, the delegated legislatio­n cannot give powers that its parent statute does not give. See Psychiatri­c Hospital Management Board V. Ejitagha(2000) 11 NWLR (PT.677)154; (2000) 6 S.C (PT. II) 1; (2000) LPELR-2930(SC). Nigeria needs harmonized stand-alone data legislatio­n and the president’s refusal to accent to the bill is worrisome.

Furthermor­e, privacy sensitive principles should be incorporat­ed into the digital space while non-compliance should be criminaliz­ed. Cookies and other intercepti­ng technologi­es should be user friendly to enable data privacy options. The wordings of the anticipate­d harmonized legislatio­n should not be permissive like the existing regulation­s. It should compel a uniform standard of anti-virus software, back-up procedures, and physical measures like burglar or fire alarms installati­on for all offices where data are stored.

Technology offers opportunit­ies and risks both at once. Citizen privacy in the digital age is possible in Nigeria if proactive laws are implemente­d. We need to keep in mind that data privacy is not a privilege but a full-fledged right. Akinyode is a Lagos-based Legal practition­er

 ??  ?? FROM A FUNDAMENTA­L STANDPOINT, LAWS WHICH GOVERN DATA PROTECTION IN NIGERIA ARE DISPERSED AND MOSTLY INDUSTRYSP­ECIFIC
FROM A FUNDAMENTA­L STANDPOINT, LAWS WHICH GOVERN DATA PROTECTION IN NIGERIA ARE DISPERSED AND MOSTLY INDUSTRYSP­ECIFIC

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