The difference between oil and data is that the product of oil does not generate more oil (unfortunately), whereas the product of data (self-driving cars, drones, wearables, etc) will generate more data (where do you normally drive, how fast/well you drive, who is with you, etc).
-Piero Scaruffi, cognitive scientist and author of History of Silicon Valley. - 2016:2
For the past few decades, the exportation of oil has been Nigeria's major source of revenue and sadly to the detriment of other economic sectors and revenue sources. However, with the drop in global oil prices the Nigerian government vide its policy to diversify the country's revenue base recently shifted its focus on oil to other areas of the economy. The main policy thrust of the current administration is to create an enabling environment for both foreign investor inflow and local enterprises to thrive. These investors bring not only capital but also intellectual property into the country. Most of these intellectual properties take the form of data. Data is fast becoming more valuable that oil, because in contrast to oil, the product of data generates more data which in turn leads to more revenue while the product of oil does not generate more oil.3 In comparison to oil, data has more diverse application and there is a huge reward for investors who see the fundamental value in the control, management and application of data and learn to extract and harness its value.4
Despite the immense value of data, there is a lack of understanding regarding data rights and protection. Although it is beneficial to the society there are still a lot of complexities around it. With various issues surrounding data protection and ownership such as cyber security, data ownership right and freedom of information, it is difficult to ascertain where the data ownership rights lie and the boundaries of data protection rights.
Through a critical analysis, this short paper will aim to discuss the issues surrounding data and its protection in Nigeria. This paper will also discuss the issues surrounding data in cyber space.
With the introduction of the internet and the rapid transfer of data by electronic means in Nigeria, this has significantly eased the formalities of doing business in the country. A vast number of companies now operate majorly via their website. This change has also resulted in the need for data protection and regulations to shield personal information of citizens. Recently, the Nigerian Government introduced online incorporation of companies,5 an initiative that has greatly reduced the time and cost of incorporating companies making investments more attractive. In Nigeria there is no single data protection regulation in force. However, there are some relevant regulations which indirectly provide for its protection which investors can benefit from.
Some of these laws and regulations include:
" The Constitution of the Federal Republic of Nigeria;
" The Freedom of Information Act 2011;
" The Nigerian Communications Commission Act 2003;
" The Cybercrimes (Prohibition, Prevention etc.) Act 2015;
" Registration of Telephone Subscribers Regulations, 2011.
Regulations on data protection in Nigeria:
Like most countries, the starting point for the protection of the rights of Nigerian citizens is the Constitution of the Federal Republic of Nigeria 1999 (as amended).6 The Constitution provides that "the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected".7 Although the Constitution provides that the individual right to privacy is guaranteed, it also lays down situations where the right to privacy can be fettered by laws made by the Nigerian National Assembly. Section 45 of the Constitution provides that "in the interest of defence, public safety, public morality or public health and for the purpose of protecting the rights and freedom of other persons, the right of privacy can be denied".
The Nigerian Constitution tries to balance the rights of privacy of information and data of citizens alongside the rights of the parties8 who may need to access such information or data. These rights can only be breached in the overwhelming interest of justice and in situations involving public safety and defence.
Another vital regulation that deals with data protection is the Freedom of Information Act 2011.9 This Act expressly articulates the concept of data protection within Nigeria. Section 31 of this Act10 defines "personal information" as any official information held about an identifiable person, but does not include information or data that bears on the public duties of public employees and officials. This however does not contradict Section 1 of this Act11 which grants unhindered access to public records and information as freely accessible. Section 1412 also attempts to protect personal data as it lists the different types of personal information that a public institution must deny access depending on the exigencies.
Section 14(2)13 goes on to state that information that contains personal data of an individual can be disclosed by a public institution where the individual to whom the information relates consents to the disclosure, where the information is publicly available or where public interest in the disclosure outrightly outweighs the protection of the privacy of the individual to whom such information relates. Like the Constitution, the Freedom of Information Act limits the protection of privacy and information of the Nigerian citizen based on overwhelming public interest.
In addition, the Nigerian Terrorism Prevention Act 2013 empowers a judge to grant an interception of communication order, or to authorize law enforcement agents to enter premises to install devices and execute covert operations.14 While the Nigerian Communications Commission (NCC) Act 2003 authorises the Commission to order the communication or records of any person or general public to be intercepted or detained and/or disclosed to an authorised officer.15
In an attempt to protect the data collected, collated, retained and managed by telecommunications companies and independent registration agents, the Nigerian Communications Commission in 2010 revised and amended the Subscriber Identification Module‟ (SIM) Card Registration Regulation.16 This regulation represents a wider perspective on data and privacy protection. Section 9 of the new RTS Regulation 2011 provides for data protection and confidentiality, by granting a subscriber the right to review and update its personal information stored in a central base. Subsection (2)17 of the same section further provides that such information contained in the central database shall be held on a strictly confidential basis and no person or entity shall be allowed access to any subscriber's information, except in accordance with the regulations.
Data protection in cyber space:
Most data is now stored or backed-up either in a cloud or on a remote server. The concerns surrounding data protection in Africa as a continent is so pronounced that in 2014, the African Union adopted the Cyber Security and Personal Data Protection Convention by the 23rd Ordinary Session of the Assembly of the Union, held in Malabo on 27th June 2014.18
Shortly after the African Union Convention on Cyber Security and Personal Data Protection Convention, Nigeria enacted the Cybercrimes (Prohibition, Prevention, etc.) Act, 2015. Section 5 (1) of The Cybercrimes Act also lists offences against critical national information infrastructure, and liabilities under this section attracts a term of imprisonment of not more than ten years without an option of fine.19
The Cybercrimes Act20 views the protection of data as a "private/public" responsibility since private bodies and companies with the authority of the Federal Government acquire and store data of Nigeria Citizens in the normal course of business. With the introduction of the "Know Your Customer"21 requirement program by the Central Bank of Nigeria, banks and financial institutions are required to retain the personal data of all their customers for security and verification purposes.22 The 2015 Cybercrimes Act23 also mandates financial institutions and service providers to assist in criminal investigations and proceedings.24 The Cooperation25 between criminal justice authorities and private sector entities, including Internet service providers (ISPs) and financial sector, is essential to protect society against crime.26
The issues relating to data protection in Nigeria, is handled with great importance that the National Computer Emergency Response Team (ngCERT) domiciled at the Office of the National Security Adviser (ONSA) as empowered by the Cybercrimes Act of 2015, brought relevant stakeholders together under a forum27 for the identification of Critical National Information Infrastructure (CNII).28
All the different regulations cited in this paper provide for the protection of data in Nigeria in varied forms and under certain circumstances. The common denominator is that they protect
the privacy, data and information of Nigerian citizens with a caveat that privacy can only be infringed upon where there is an overriding public interest, public safety or defence.29 The problem now lies in where to draw the line, as this creates a situation whereby a citizen's rights abate where another citizen's right starts. Section 14 of the Nigerian Evidence Act30 seems to compound this issue regarding improperly or irregularly obtained evidence, as it provides that "evidence obtained improperly... shall be admissible unless the court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting evidence that has been obtained in the manner in which the evidence was obtained". In Nigeria, Section 84 of the Evidence Act31 provides for the admissibility of electronic evidence. The effect of both Sections 84 and 14 of the Evidence Act is that electronic data gotten illegally is admissible if relevant to the proceedings.
In conclusion, the Nigerian Government has the responsibility32 of protecting the data of its citizens (which is over 190million people33), as well as investors (both foreign and local), and corporate entities, and safeguarding overriding public interest. Referring once again to the Nigerian Federal Constitution, we can observe that the overlapping protection of information, privacy and data is well guarded as an infringement or disclosure of data held by a party can only be done where situations of overwhelming public interest, public safety and defence arises. The only instances in which data protection can be breached are quite clear. All data in form of public records that are accessible are accessible to all without discrimination.
In Nigeria, the different regulations that provide for data protection are not adequate for a growing economy. "Data" is essentially the new "Nigerian oil" of the 21st century, as it is an immeasurably, untapped valuable asset with the potential of creating new jobs, improving on the efficiency of the old institutions while enhancing the lives of Nigerian citizens if properly harnessed. Therefore, the current legislations in place are inadequate and it is highly essential that a harmonized legislation defining data, creating boundaries and clearly distinguishing the rights of data owners and third parties who may need to access data should be promulgated. There is also a need to aggregate and streamline the collation and storage of personal information of citizens now being generated under the auspices of various agencies and parastatals both for security reasons and statistical planning and to ensure the proper allocation of social and economic benefits to all citizens.
1 Associate with the Intellectual Property Department of SPA Ajibade & Co., Lagos, Nigeria.
2 Piero Scaruffi Humankind 2.0‟‟ (2016) available at <http://www.scaruffi.com/singular/bigdata.html > accessed on 5th May, 2017.
4Joris Toonders, Yonego, "Data Is the New Oil of the Digital Economy" available at < https://www.wired.com/insights/2014/07/data-new-oil-digital-economy/> accessed on 5th May, 2017.
5PM News: CAC begins 48 hours Online Registration Process‟ available at < https://www.pmnewsnigeria.com/2017/03/31/cac-begins-48-hour-online-company-registration-process/ > accessed on 5th May, 2017.
6 Cap. C23 Laws of the Federation of Nigeria, (LFN) 2004.
7 Section 37, Constitution of the Federal Republic of Nigeria.
8 Such parties includes the police and other law enforcement agencies.
14 Section 29 (1) of the Nigerian Terrorism (Prevention) (Amendment) Act, Official Gazette No 25 Vol 100 (2013) A27.
15 Section 148 of the Nigerian Communications Act of 2003, Cap. N97 LFN 2004 LFN.
16 The amended regulation is now cited as the Registration of Telephone Subscribers Regulations, Federal Republic of Nigeria's Official Gazette No101 Vol 98 (2011) B 1125
18 African Union Convention on Cyber Security and Personal Data Protection, EX.CL/846(XXV) available at < https://ccdcoe.org/sites/default/files/documents/AU-270614-CSConvention.pdf > accessed on 5th May 2017.
19 However, where the offence results in grievous bodily harm, the punishment prescribed is 15 years imprisonment, while life imprisonment is the prescribed punishment where the action results in death.
20 Sections 37-40 of the Cybercrimes Act of 2015. [CITATION]
21 The term know your customer is used to extract basic and sensitive information and data about customers in different sectors in Nigeria.
22 Central bank of Nigeria Circular to all banks and other financial institutions "AML/CFT Compliance Manual", March 19, 2009 available at < http://www.cbn.gov.ng/out/circulars/bsd/2009/circular.aml%20compliance%20manual.pdf> accessed on 5th May 2017.
23 Section 37 and Section 38 of the Cybercrimes Act of 2015 respectively.
24 Service providers who fail to assist commit an offence and are liable to a fine of N10,000,000. In addition, managers and directors found culpable would be liable to 3years imprisonment or fine of 7million or to both fine and imprisonment. See Section 40 of the Cybercrimes Act of 2015.
25 Such cooperation concerns primarily prevention, detection of crime, ensuring necessary evidence for criminal justice purposes, financial investigations and confiscation of proceeds of crime, but also the sharing of information and experience, as well as training.
26 Section 12 of the Cybercrimes Act of 2015 prescribes the penalties for unauthorised interception of non-public data.
27 The aim of the forum is for ONSA to collectively work with stakeholders to kick-start the process of identifying and developing an inventory of critical information infrastructure which shall subsequently be gazetted as national assets under Presidential Order.
28 Key note address for stakeholders forum on identification of critical national information infrastructure delivered by the National Security Adviser, General Babagana Munguno (Rtd) on 24 November 2016 available at < https://cert.gov.ng/publications/nsas-key-note-in-the-cnii-forum >accessed on 5th May 2017.
29 The disclosure of a person's personal information without consent may amount to a breach, except where the disclosure is a result of a legal obligation or where it is not reasonably expected that such information can lead to the identification of the person involved. In the case of Habib Nigeria Bank Limited v. Fathudeen Syed M. Koya [1990 - 1993] 5 NBLR p. 368 at 387 a case which involved an alleged disclosure by a bank of a customer's transactional information, the Court of Appeal held that it is elementary knowledge that the bank owed its customer a duty of care and secrecy and a disclosure of personal information is a breach of that duty.
30 Evidence Act, No. 18, 2011.
32 This is one of the numerous responsibilities within its purview.
33 The current population of Nigeria is 191,053,02 based on the latest United Nations estimate. For more see Worldometer, available at < http://www.worldometers.info/world-population/nigeria-population/> accessed on 6th May 2017.
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.