Introduction
The recent leak of explicit tapes involving Baltasar Engonga, the former Head of the Equatoguinean National Agency for Financial Investigation, has globally sparked intense debates on the intersection of privacy rights and lawful bases for data processing. This article provides a Nigerian law review context of the case, examining the likely implications for data protection and privacy in Nigeria, with a focus on the Nigeria Data Protection Act 2023.
Background
Baltasar Engonga earned global infamy recently when he was embroiled in a messy scandal surrounding the leak of multiple explicit tapes which he featured in on prominent online platforms.1 The massive leak raised significant concerns about the balance between individual privacy rights and the lawful bases for data processing.
Nigerian Law Review
The Nigeria Data Protection Act 2023 (the "NDPA") provides a comprehensive framework for data protection in Nigeria. Section 2 of the NDPA recognizes the right to privacy as a fundamental human right, while Section 3 sets out the principles for data processing, including lawfulness, fairness, and transparency.
Lawful Bases for Data Processing
The NDPA recognizes several lawful bases for data processing, including:
- Consent: Section 14 of the NDPA requires that consent be freely given, specific, informed, and unambiguous. Consent must also be capable of being withdrawn at any time.
- Contract: Section 15 of the NDPA permits data processing where it is necessary for the performance of a contract to which the data subject is a party.
- Legitimate Interests: Section 16 of the NDPA allows data processing where it is necessary for the purposes of the legitimate interests pursued by the data controller or a third party, except where such interests are overridden by the interests or fundamental rights and freedoms of the data subject.
- Compliance with a Legal Obligation: Section 17 of the NDPA permits data processing where it is necessary for compliance with a legal obligation to which the data controller is subject.
- Protection of Vital Interests: Section 18 of the NDPA allows data processing where it is necessary to protect the vital interests of the data subject or another person.
- Public Interest: Section 19 of the NDPA permits data processing where it 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 data controller.
The Question of Public Interest Consideration
In the context of the Baltasar Engonga case, the release of his explicit tapes raises complex issues about privacy and the legal basis of public interest. The NDPA provides that data processing may be permitted where it is necessary for the performance of a task carried out in the public interest. What this means is that in applying this legal basis for processing personal data, it is important to confirm that it is necessary for performing a task or exercising official authority.
However, it is essential to note that the public interest exception must be narrowly construed and applied. The principle of necessity implies that any intrusion into privacy must be proportionate to achieving a legitimate public objective such as exposing misconduct by a public official. The leak of explicit sex tapes may not necessarily be in the public interest, unless it can be demonstrated with clear evidence that such leak is necessary to expose a public official's misconduct or corruption.
From available reports, the explicit tapes appear to showcase personal indiscretions rather than substantive evidence of corruption or misconduct, hence the nexus required to be proven is missing prima facie. Although Baltasar Engonga is said to be held under investigation for alleged corruption2 (at the time of this publication), it is highly in doubt whether the tapes contribute significantly to uncovering any allegations of corruption against him.
In the absence of a direct link between the content of the tapes and public misconduct, their release would likely constitute an unjustifiable breach of privacy. Furthermore, the motivations behind the leak remain ambiguous, making it difficult to determine whether the release was merely motivated by a desire to expose perceived 'immoral conduct' instead of financial corruption. Without further context, it is difficult to establish how exactly the leak was justified under the public interest exception.
Analysis under the Constitution of the Federal Republic of Nigeria 1999 (as amended)
Under the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the "Constitution"), the right to privacy is protected by Section 37. However, this right is not absolute and may be limited by law in certain circumstances.
In the case of Baltasar Engonga, it is important to consider whether the leak of the explicit tapes would be considered a lawful limitation on an individual's right to privacy under the Constitution. The Constitution provides that any limitation on the right to privacy must be reasonable and justifiable in a democratic society. Following from this, the Lagos State High Court in Adewale v. Timothy2 Suit No. LD/14893MFHR/2023 held that: "The right to privacy is one of the fundamental rights of an individual guaranteed under the 1999 Constitution of the Federal Republic of Nigeria. The right to privacy protects an individual from the invasion of his/her privacy by anyone, it protects an individual from the public disclosure of embarrassing facts, and it prevents the appropriation of an individual's name or likeness for commercial use."3
From the decision of Sule-Amzat, J. in the aforementioned matter and the application of the court's decision to Baltasar Engonga's matter, the question as to the justifiable and reasonable limitation to his privacy rights may be raised, however such exposures are at the very best unwarranted public disclosures on embarrassing facts about a person and an affront on the rights to privacy and dignity. Putting this further into perspective, renowned author on Privacy & Data Protection, Olumide Babalola submitted;
" In Engonga and his co-travellers' case, the public exposure of their 'private' videos have arguably stripped them of the measure of dignity they once enjoyed. The once respected anti-corruption czar is now a subject of ridicule, insults, abuses and worst of all, undignifying digital footprints, social media memes and gifs which may not leave the Internet for a very long time. He has been called many unprinted and undignifying names and is even now subject to prosecution. His dignity has suffered a huge blow from which he may never recover – all these because his privacy was invaded by the persons who gained access to his intimate moments on tape."4
Analysis under the General Data Protection Regulation ("GDPR")
The GDPR provides a comprehensive framework for data protection in the European Union. While the GDPR may not be directly applicable to the Baltasar Engonga case, it provides useful guidance on the principles of data protection.
Under the GDPR, data processing must be based on one of the lawful bases set out in Article 6. These lawful bases include consent, contract, legitimate interests, compliance with a legal obligation, protection of vital interests, and public interest.
The GDPR also emphasizes that personal data processing should respect the principles of lawfulness, fairness, and transparency. In this case, the highly sensitive nature of the explicit tapes suggests a severe breach of privacy, regardless of the purported intent behind their dissemination. Without clear evidence linking the content of the tapes to acts of public corruption or abuse of power, the justification under the public interest exception would be tenuous at best.
In the context of the Baltasar Engonga case, it is unclear which lawful basis would be most applicable. However, it is clear that the leak of his explicit tapes would require careful consideration of the principles of data protection.
Conclusion
The Baltasar Engonga case highlights the complexities of balancing individual privacy rights with lawful bases for data processing. As Nigeria continues to develop its data protection framework, it is essential to strike a balance between these competing interests. Thankfully, recourse to the provisions of the NDPA as well as comparative cross-jurisdictional analyses can prove helpful, should the need ever arise.
References:
Nigeria Data Protection Act 2023
Constitution of the Federal Republic of Nigeria 1999 (as amended)
General Data Protection Regulation (GDPR) (EU) 2016/679
Olumide Babalola, 'Sex Tapes from the Equatoguinean Anti-Corruption Czar: Another Reminder that Our Lives and Wellbeing are Connected to Privacy?' (DNL Legal & Style, 5 November 2024) https://dnllegalandstyle.com/dnl/sex-tapes-from-the-equatoguinean-anti-corruption-czar-another-reminder-that-our-lives-and-wellbeing-are-connected-to-privacy/#google_vignette accessed 1 December 2024
Ines Silva & Damian Zane, 'Massive sex tape leak could be a ploy for power in central Africa' (BBC, 10 November 2024) https://www.bbc.com/news/articles/cr4ledr19nyo accessed 30 November 2024
Footnotes
1. Ines Silva & Damian Zane, 'Massive sex tape leak could be a ploy for power in central Africa' (BBC, 10 November 2024) https://www.bbc.com/news/articles/cr4ledr19nyo accessed 30 November 2024
2. Olumide Babalola, 'Sex Tapes from the Equatoguinean Anti-Corruption Czar: Another Reminder that Our Lives and Wellbeing are Connected to Privacy?' (DNL Legal & Style, 5 November 2024) https://dnllegalandstyle.com/dnl/sex-tapes-from-the-equatoguinean-anti-corruption-czar-another-reminder-that-our-lives-and-wellbeing-are-connected-to-privacy/#google_vignette accessed 1 December 2024
3. Ibid
4. Ibid
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