Despite the growing demand for data brought about by the fourth industrial revolution, Nigeria has through the years, been without a comprehensive and single legislation on the protection of personal data. Aside from the Constitution of the Federal Republic of Nigeria 1999, what we have are several sectoral (piecemeal) legislations that have provisions that touch on the protection of data and privacy.
However, the National Information Technology Development Agency (NITDA) on January 25, 2019, took a commendable step towards changing this narrative when it issued and published the Data Protection Regulation ("the Regulation"). The Regulation is undoubtedly a turning point in the protection of data in Nigeria. Data protection is currently one of the most contemporary issues globally for many businesses, and to this extent the Regulation is a replica, in many respects, of the European Union (EU) General Data Protection Regulation (GDPR). For serious businesses that deal with their clients' data in Nigeria, the Regulation provides the much-needed direction and guidance on data protection in the country. It improves upon the Guidelines on Data Protection issued by NITDA in 2013. Unlike the 2013 Guidelines, the 2019 Regulation is more robust and comprehensive, applies assertive language, imposes sanctions on companies for non-compliance with its provisions and grants enforceable rights to data subjects.
Scope and Application of the Regulation
The Regulation applies to transactions 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. The key players under the Regulation are:
- a Data Subject: the person whose identity is or may be revealed from the data.
- the Data Protection Officer: a person designated by the Data Controller to implement the Regulation and whose responsibility is to ensure compliance of the Data Controller with the Regulation.
- a Data Controller: the person/persons who determine how personal data is processed or will be processed. Processing means any action carried out on personal information. It includes collection, recording, storage, adaptation, alteration, retrieval, use, disclosure or dissemination.
Under the Regulation, personal data does not include companies' information but is defined as information relating to an identified or identifiable natural person. This 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.
Highlights of the Data Protection Regulation
Compliance Obligations under the Regulation
- Within three months (i.e. no later than March 2019) from the issuance of the Regulation, affected entities are to publish their data protection policies and make same available to the public.
- Affected entities are to designate a Data Protection Officer (or outsource data protection to a competent person/firm) to ensure adherence to the Regulation.
- Within six months (i.e. no later than June 2019) after the date of issuance of the Regulation, affected entities are to conduct a detailed audit of their respective privacy and data protection practices and where such organisations process personal data of more than 1000 individuals in 6 months, a digital copy of the summary of the audit is to be submitted to NITDA.
- Where a Company processes more than 2000 Data Subjects within a period of 12 months, it must submit a summary of its data protection audit to NITDA on 15th March of every year.
Data Collection and Processing
The Regulation also provides that personal data is to be collected and processed by a Data Controller ("Controller") in accordance with a specific, legitimate and lawful purpose. For the processing of personal data to be considered as being for a lawful purpose, at least one of the following must apply to the processing;
- has been consented to by the data subject
- is for the performance of a contract
- is required for compliance with a legal obligation
- is required for protection of the vital interest of a data subject or another natural person, or
- is necessary for the performance of a task carried out in the public interest or in the exercise of official public mandate vested in the Controller
A Data Subject must give consent to the processing of personal data by the Controller. The consent must be freely given, specific, informed and unambiguous and has to be indicated by a statement or by a clear affirmative action of the Data Subject; excepting such instances where further processing is required in the public interest or in connection with historical research or collection of information for statistical purposes.
The obligation of the Controller extends to the storage of the personal data as he must ensure the security of the data. This can be done by protecting systems from hackers, setting up firewalls or developing an organisational policy on handling personal data.
Following in the footsteps of the European Union's GDPR, the Regulation imposes an obligation on the Data Controller to ensure that its third-party processors adhere to the Regulation. However, data processing by a third-party contractor is to be governed by a written contract between the contractor and a Controller which must meet the minimum requirements stipulated by the Regulation. It is not enough for a Controller to state that the responsibility for protecting personal data is contracted to a third party. The liability for the actions or omissions of a third-party contractor inure in the event of breach.
Rights of Data Subject
The Regulation recognises the right of a Data Subject to the deletion of personal information, restriction in processing his/her information, the right to rectify and to have the information in a portable format, and also the right to transfer the information to another Data Controller. The Data Subject also has the right to object to the processing of personal information where it is for marketing purposes.
Enforcing the Rights of Data Subjects
The Regulation empowers 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. This, however, does not derogate from the Data Subject's right to seek redress in a competent court of jurisdiction.
The investigation and determination of a remedy by the Administrative Redress Panel must occur within 28 days. The Regulation further provides that the privacy rights of a Data Subject should be interpreted to advance, and never to restrict the safeguards he/she is entitled to.
Transfer of Data to Third-Party Countries
The Regulation provides for the transfer of data to third-party countries, and in this regard 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:
- The Data Subject has consented to the processing;
- It is for the performance of a contract in favour of the Data Subject;
- It is for the public interest;
- It is for the establishment, exercise or defence of legal claims; or
- It is to protect the vital interests of the Data Subject or other persons
The Penalty for failing to comply with the Regulation is dependent on the number of Data Subjects that a company processes:
a) More than 10,000 Data Subjects - payment of a fine of 2% of Annual Gross Revenue or 10 million Naira whichever is greater;
b) Less than 10,000 Data Subjects - payment of a penalty of 1% of Annual Gross Revenue or 2 million Naira whichever is greater.
The Regulation represents a huge stride for data protection in an increasingly digitized economy. If strictly implemented, it has potential to enhance transparency and accountability in data collection and processing, and thus stimulate more transactions requiring the sharing of data. It could also ensure that individuals are empowered to exercise control and demand compliance with their preferences where personal data is to be processed.
For organisations that largely deal with data of individuals and who may just be becoming familiar with the Regulation, here is a simple checklist to facilitate compliance:
- Immediate drafting and publication of simple, clear and holistic data protection policies via all channels of communication, including but not limited to websites, email signatures and contracts.
- Appointment of a Data Protection Officer with significant skill and understanding of the business operations of the organisation.
- Conduct of internal training for employees and officers to ensure due communication of the potential liability that may arise from breach of any provision of the 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.