Nigeria: The NITDA Data Protection Regulation: A Watershed In The Protection Of Personal Data In Nigeria

Last Updated: 14 February 2019
Article by Florence Bola-Balogun and Ademola Adeyoju

INTRODUCTION

Through the years, Nigeria has lacked comprehensive legislation which protects against the misuse and mismanagement of personal data. However, on 28th January 2019, the National Information Technology Development Agency's (NITDA) took a bold step towards changing this narrative when it published the Data Protection Regulation ("the Regulation").

Scope and Application of the Regulation

The Regulation is made under the powers of NITDA1 to develop regulations for electronic governance and to monitor the use of electronic data interchange and other forms of electronic communication transactions.

The Regulation applies to transactions intended for or requiring the processing of personal data. It also applies to all Nigerians who are resident within and outside Nigeria, and to non-Nigerians resident in Nigeria.

Highlights of the Data Protection Regulation

Personal Data is defined in the Regulation as the information relating to an identified or identifiable natural person2. These may include a name, a photo, an email address, bank details, medical information, computer internet protocol (IP) address and any other information specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. However, personal data does not include companies' information. Processing means any operation on personal information such as collection, recording, organisation, storage, adaptation, alteration, retrieval, use, disclosure or dissemination.3

The Regulation also provides for Data Controllers who shall be persons responsible for determining the manner in which personal data would be processed. A Data Controller ("Controller") must understand the legal basis for processing4 the information before it proceeds to obtain personal information. For the processing of data to be considered as being lawful, at least one of the following must apply as the processing;

  1. has been consented to by the data subject
  2. is for the performance of a contract
  3. is required for compliance with a legal obligation
  4. is required for protection of the vital interest of a data subject or another natural person, or
  5. is necessary for the performance of a task carried out in the public interest.5

The Controller is required to give specific information to a Data Subject6 before obtaining any personal information to ensure that the Data Subject gave informed consent.7

The obligation of the Controller does not end at the collection stage but extends to the storage of the Personal Data as he must ensure the security of the data, which can be done by protecting systems from hackers, setting up firewalls or developing an organisational policy on handling personal data.8

Following in the footsteps of the European Union's General Data Protection Regulation (GDPR), the Regulation imposes an obligation on the Data Controller to ensure that its third-party processors adhere to the Regulation.9

Rights of Data Subject

The Regulation recognises the right of a Data Subject to a deletion of personal information, restriction in processing the information, right to rectify and to have the information in a portable format, and also the right to transfer the information to another Data Controller.10 Besides, the Data Subject has the right to object to the processing of personal information where it is for marketing purposes.11

Enforcing the Rights of Data Subjects

The Regulation further empowered NITDA to set up an Administrative Redress Panel to receive allegations from Data Subjects; investigate the allegations; where necessary, issue administrative orders; and determine appropriate redress. The investigation and determination of the remedy by the Administrative Redress Panel must be done within 28 days.12

The Regulation further provides that the privacy right of a Data Subject should be interpreted to advance, and never to restrict the safeguards the Data Subject is entitled to.13

Transfer of Data to Third-Party Countries

The Regulation provides for the transfer of data to third-party countries.14 It vests supervisory powers on the Attorney General of the Federation to determine third-party countries with adequate data protection laws for possible data transfer to such countries.

However, where the Attorney General has not decided on such countries, the Data Controller may process the information where:

  1. The Data Subject has consented to the processing;
  2. It is for the performance of a contract in favour of the data subject
  3. It is for the public interest;
  4. It is for the establishment, exercise or defence of legal claims; or
  5. It is to protect the vital interests of the Data Subject or other persons

The Regulation also impose the following compliance obligations on both private and public entities as follows:15

  1. They are to display a conspicuous privacy policy on all medium for collection and processing of personal data.16
  2. Within three months17 from the issuance of the Regulation, they are to publish their data protection policies.18
  3. They are to designate a Data Protection Officer to ensure adherence to the Regulation.19
  4. Within six months after the date of issuance of this Regulation, they are to conduct a detailed audit of their respective privacy and data protection practices.

Where a Company processes more than 2000 Data Subjects within a period of 12 months, it must submit a summary of a data protection audit to the NITDA on 15th March of every year.

Penalty

The Penalty for failing to comply with the Regulation is dependent on the number of Data Subjects that a company processes20:

a) More than 10,000 Data Subjects - payment of the fine of 2% of Annual Gross Revenue or 10 million Naira whichever is greater;

b) Less than 10,000 Data Subjects - payment of the penalty of 1% of the Annual Gross Revenue or 2 million Naira whichever is greater.

Our Thoughts

The Regulation was made a few months after the European Union's General Data Protection Regulation (GDPR) came into effect. The GDPR can be described as the most revolutionary introduction to the regulatory landscape of data privacy, particularly because its jurisdiction extends beyond the European Union and applies to all businesses, regardless of location, who by virtue of their business relationship with entities in the EU, process the personal data of EU residents.

The Regulation has adopted or replicated some of the key provisions of the GDPR, including the processing and handling of personal data for clearly specified business purposes, application of the data protection provisions to all residents, and imposing obligations on entities to protect data with corresponding penalties for a contravention of the data protection provisions.

Nonetheless, the Regulation is not as comprehensive and extensive as the GDPR and there is a question on if the timeline for effectiveness of the Regulation is practicable. The Regulation is required to come into effect when it is signed by the NITDA Board; it is to be noted that the Regulation was issued on the 28th of January 2019, and it mandates companies to comply with its provisions from the date of issuance of the Regulation.

This is a remarkable contrast from the GDPR which provided for a two-year period within which member states of the European Union (EU) were to comply with it. Considering that this legislation on data protection is entirely new to Nigeria, it may take some time for companies and business to fully comply with it.

Nonetheless, the introduction of the Regulation is a marked change from the status quo to the extent that personal data shall only be collected for specified, explicit and legitimate purposes, and shall not be used in a manner that is incompatible with those purposes. It also imposes an obligation on entities to only collect personal data that is adequate, relevant and limited to what is necessary for the purposes for which they are processed.

If the Regulation is duly enforced and complied with, it will be in substantial compliance with the GDPR and may provide more comfort to Nigerian entities doing business in the EU or with EU entities. It is also expected that familiarity with the application of the Regulation will make the implementation of the Data Protection Bill (currently pending at the National Assembly) easier if it is eventually passed into law.

Footnotes

1. Section 6 (c) and Section 32 of the National Information Technology Development Agency Act

2. Section 1.3 of the NITDA Data Protection Regulation

3. Section 1.3 of the NITDA Data Protection Regulation

4. Section1.3 of the NITDA Data Protection Regulation defines processing as any operation on personal information such as collection, recording, organisation, storage, adaptation, alteration, retrieval, use, disclosure or dissemination

5. Section 2.2 of the NITDA Data Protection Regulation

6. Section 1.3 of the NITDA Data Protection Regulation defines a Data Subject as any person who can be identified, whether directly or indirectly, by particular reference to an identification number or by physical, physiological, mental, economic, cultural or social identity or a combination of any of these factors.

7. Section 2.13.6 of the NITDA Data Protection Regulation

8. Section 2.6 of the NITDA Data Protection Regulation

9. Section 28(1) of the GDPR and Section 2.8 of the NITDA Data Protection Regulation

10. Section 2.13 of the NITDA Data Protection Regulation

11. Section 2.8 of the NITDA Data Protection Regulation

12. Section 3.2 of the NITDA Data Protection Regulation

13. Section 2.9 of the NITDA Nigeria Data Regulation

14. Section 2.10 and 2.11 of the NITDA Data Protection Regulation

15. Section 3 of the NITDA Data Protection Regulation

16. Section 2.5 of the NITDA's Data Protection Regulation

17. NITDA announced the release of the Regulation on Friday, 25th January 2019 – see https://sundiatapost.com/2019/01/25/nitda-unveils-it-guidelines-calls-for-strict-compliance/ accessed on 30th January 2019. Therefore, the three months will lapse on 24th April 2019

18. Section 3.1 of the NTDA Data Protection Regulation

19. Section 3.1.2 of the NITDA's Data Protection Regulation

20. Section 2.10 of the NITDA Data Protection Regulation

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Practice Guides
by Mondaq Advice Centres
Relevancy Powered by MondaqAI
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions