Nigerian companies (that process individual data over a certain threshold) are now required to comply with data protection and privacy rules as a legal obligation as opposed to best practice. Unlike other preexisting data protection compliance requirements, which were specific to companies operating within certain sectors, this new legal requirement cuts across all sectors.
Given the attendant increase in the use and transfer of personal information of individuals and the need to protect the individual right to privacy, the National Information Technology Development Agency (NITDA) of Nigeria issued the Nigeria Data Protection Regulation (NDPR) in January 2019. The NDPR introduces major compliance obligations for Nigerian companies, which include audit checks, publication of data protection policies, filing of audit reports amongst others and also stipulates stiff penalties for its breach.
The release of the NDPR may be connected to global trends in data protection and privacy. In recent times, there have been media reports of scandals involving the misuse of personal data of individuals by major international organisations. In 2018, one of the prominent social media platforms, Facebook, was enmeshed in a major scandal that involved the use of personal data that was harvested from millions of Facebook profiles by a United Kingdom (UK) firm without necessary authorization. This scandal became a watershed moment for public discussions and scrutiny into how companies handle data.1
Thus, in May 2018, the European Union (EU) General Data Protection Regulation (GDPR) became operational in response to concerns about the use and transfer of personal data of EU residents. The GDPR seeks to harmonize data security laws in all EU member states and creates data protection obligations and penalties for breach of such obligations. The NDPR mirrors the GDPR closely and is poised to change the face of corporate and personal transactions in Nigeria, with respect to intensified data protection and privacy policies.
This newsletter examines the NDPR provisions and other data protection and privacy developments in the international scene.
An Overview of the NDPR 2019
On 25 January 2019, NITDA issued the NDPR pursuant to its powers under the NITDA Act2 with respect to developing regulations for electronic governance and monitoring the use of electronic data interchange and other forms of electronic communication.
The Regulation introduce a new data protection framework with novel compliance requirements for organizations that deal with the data of individuals. The objectives of the Regulation include, inter alia, safe guarding the rights of natural persons to data privacy, preventing manipulation of personal data and fostering the safe conduct of transactions involving exchange of personal data. The Regulation also seek to enhance the competitiveness of Nigerian companies in international trade through the safeguards afforded by an equitable legal and regulatory framework on data protection, which is in line with global best practices.
ii. Scope of the Regulation
The NDPR applies to all transactions intended for the processing of personal data of natural persons residing in Nigeria or Nigerian citizens residing in foreign jurisdictions. Based on the NDPR, data processing includes the collection, recording, storage, retrieval, use, disclosure, transmission, erasure and destruction of personal data.
The above indicates the wide scope of organizations that are regulated by the NDPR. It implies that organizations that merely store or even destroy personal data of persons without performing further analysis or even involving a third party in the use of data also fall within the scope of the Regulation.
The NDPR amplifies the rights of persons that provide their personal data i.e. Data Subjects under the data privacy regime in Nigeria. It specifically confers certain rights on Data Subjects, such as the right to information about their personal data, right to access of their personal data, right of rectification of their information, right to withdraw consent, right to object, right to demand for automated processing, right for data portability and right to be forgotten3 .
iii. Compliance Requirements
- One of the focal points of the NDPR is the need for Data Controllers to develop adequate security systems to protect data within their custody. Such security systems include setting up firewalls, employing data encryption technologies, amongst others. In line with this requirement, Data Controllers are required to maintain and publish a data protection policy that is in conformity with the NDPR and continually train and build the capacity of staff members on data protection and privacy procedures. The NDPR also mandates Data Controllers to appoint Data Protection Officers, which may be internal or outsourced to a competent firm, for the purpose of ensuring compliance to the Regulation;
- In the event that a Data Controller engages the services of a third party to process personal data of Data Subjects, the NDPR requires that such engagement must be governed by a written contract between the third party and the Data Controller. Accordingly, any person that engages the services of a third party in this regard has the responsibility to ensure that such third party complies with the provisions of the Regulation;
- Furthermore, the NDPR mandates all Data Controllers to conduct an audit on the data privacy policies of their organization within six months from the issuance of the NDPR i.e. 25 July 2019 and every other six-month period thereafter. However, the Regulation reserve the requirement for submitting data audit reports to certain categories of Data Controllers. Accordingly, only Data Controllers that process personal data of more than 1000 Data Subjects within a period of six months are mandated to file a soft copy of the summary of their audit to the NITDA. Similarly, Data Controllers that process personal data of more than 2000 Data Subjects within a period of 12 months are mandated to file a summary of their audit to NITDA, not later than 15 March in the following year.
- The NDPR provides a specific list of items to be disclosed in the audit report. This include the personal data which the organization collects from Data Subjects, the purpose for which such information is collected in addition to the organizations' data security policies. The NDPR also highlights the need for the audit report to disclose the data protection and privacy policies of the organization and the consent obtained from Data Subjects before collection and processing of their data amongst other requirements.
- It is important to note that NITDA requires that a verification statement by a licensed Data Protection Compliance Organization (DPCO) should accompany all filings made. A DPCO is any entity licensed by NITDA to train, audit and render consulting services and other services and products for the purpose of compliance with the NDPR or any foreign data protection law or regulation having effect in Nigeria. Thus, Data Controllers should ensure to engage the services of a DPCO in line with the requirements of NITDA;
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