by Andersen
All over the world, technological advancements and breakthroughs have increased exponentially, which has increased the use of personal data and the associated risk of data breaches. Thus, data protection and privacy continue to gain global attention due to the compliance obligations and responsibilities that come with data processing activities.
As a result, we have witnessed increased efforts by various governments to ensure compliance with data protection laws across different jurisdictions and significant strides being recorded by corporations to formulate and implement robust data protection compliance frameworks for the processing of personal data within their possession.
Protecting the privacy of personal data is the responsibility of every business. Therefore, all data controllers are expected to take appropriate actions towards creating a culture of privacy within their environment. As we celebrate the 2023 International Data Privacy Day, this Newsletter provides highlights of recent data protection and privacy update in Nigeria and across a few select jurisdictions.
1. Overview of the ECOWAS Law Suit Seeking to Compel the Federal Government of Nigeria to Enact a National Legislation on Data Protection
On 19 July 2021, a registered Non- Governmental Organisation (NGO), Incorporated Trustees of the Digital Rights Lawyers Initiative (the “DRLI”), instituted a public interest lawsuit at the ECOWAS Court in Suit No: ECW/CCJ/APP/37/21 and sought an order of Court compelling the Federal Government of Nigeria to enact into law a comprehensive data protection legislation in order to protect and enforce the data privacy rights of Nigerians.
The DRLI in its arguments referenced the Supplementary Act A/SA.1/01/10 on Personal Data Protection within ECOWAS (“Supplementary Act”) which Nigeria signed along with other West African Countries on 16 February 2010. The Supplementary Act, which is believed to be the first regional instrument promoting the protection of the data privacy rights of citizens of ECOWAS Member States, requires each Member State to establish a legal framework for the protection of data privacy rights within the ECOWAS.
DRLI alleged that the Nigerian government had failed to fulfil its obligation as a Member State to enact comprehensive national legislation domesticating the provisions of the ECOWAS Supplementary Act.
However, the Nigerian Government, in its counter-argument, denied the allegations of the DRLI and enumerated the extant laws in force for the protection of data privacy in Nigeria. It was also contended on behalf of the Federal Government of Nigeria that the ratification of the Supplementary Act will require legislative approval in line with the constitutional procedure stipulated under Section 12 of the 1999 Constitution of the Federal Republic of Nigeria.
The three-man panel of the ECOWAS Court have reserved Judgment in the suit till 15 March 2023. Whilst it is not in doubt that considerable efforts have been made towards the enactment of the Nigeria Data Protection Bill 2022 which is currently undergoing deliberations at the National Assembly, the public interest lawsuit instituted at the ECOWAS Court by the DRLI clearly demonstrates an increased level of awareness regarding the importance of data privacy rights within Nigeria and West Africa at large and the resolve of NGOs to challenge the status quo regarding perceived unwillingness of the government of the day to enact data protection laws by way of legal redress both at national and regional courts of law.
On 6 October 2022, the Nigeria Data Protection Bureau officially released the new draft of the Nigeria Data Protection Bill 2022 (”the Bill”). The Bill provides the legal framework for the processing and protection of personal data in Nigeria.
In terms of the scope of its applicability, the Bill will only apply where:
The Bill does not however apply to the processing of personal data for personal or household purposes as well as in cases of criminal investigation and prosecution, national public health emergency, national security, public interest or the establishment or defense of legal claims.
The Bill provides for the establishment of the Nigeria Data Protection Commission (“the Commission”) to be headed by the National Commissioner, with the Governing Council assuming a supervisory role over the Commission. The Commission is expected to be independent in the discharge of its responsibilities. The Bill also covers key areas such as data protection principles, lawful bases for the processing of personal data, requirements for the processing of sensitive personal data and conducting of a data protection impact assessment, rights of data subjects, the appointment of Data Protection Officers (“DPOs”) and licensing of data protection compliance organisations (“DPCOs”), rules relating to the cross-border transfer of personal data, amongst others.
The Bill confers enormous enforcement powers to the Commission including the powers to arrest, search and seize during the course of the investigation.
Due to the national importance of the Bill, it is expected that the National Assembly will expedite the constitutional process for the review of the Bill to enable the Bill to receive Presidential assent in due course.
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Source:Mondaq.com
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