“SIM Swap Does not Violate The Right to Privacy” The Court of Appeal Rules as Privacy Gets Its Own Dose of Conflicting Decisions In MTN v. Chuks (2024) LPELR-61989 (CA) and Abcent Multipurpose v. MTN (2021) LPELR-52819(CA)

By Olumide Babalola

Over the years, litigants and their counsel have battled conflicting decisions of the Nigerian Court of Appeal in many areas of our procedural and substantive law. Just recently, the Supreme Court finally laid to rest the conflicting position on joint applications for enforcement of fundamental rights in Total Exploration & Production (Nig) Ltd. v. Okwu & Ors. (2024) LPELR-62623(SC). For privacy litigation, while we were complaining about under-litigation, little did we know that the sparsely litigated right would soon attract conflicting decisions on whether the reassignment of telephone number by a telecoms company constitutes a violation of the right to privacy as ‘recently’ done by the Court of Appeal in the decision in MTN Nigeria Communication Limited v. Alphonsu Uzonwanne Chuks (2024) LPELR-61989 (CA)

In Abcent Multipurpose v. MTN (2021) LPELR-52819(CA), some subscribers sued MTN for reassigning their telephone number to a third party. By their relief (a), they claimed, “A declaration that Defendants’ actions, conduct, and approaches adopted in the swap of the 2nd Plaintiff’s MTN mobile line, to wit: 08035926072, in favor of a third party without recourse to the 2nd Plaintiff or his knowledge and authorization to that effect is unlawful, unconstitutional, and constitutes a breach of the 2nd Plaintiff’s rights to privacy … guaranteed by the Constitution of the Federal Republic of Nigeria, 1999.”

After hearing the parties, the trial court dismissed the claims, but when the matter got to the Court of Appeal, E.O. Williams-Dawodu, JCA, in her lordship’s leading judgment, held that “In light of the foregoing, the sole issue is resolved partly in favor of the Appellants’ case. In consequence, the appeal succeeds in part. As empowered, some of the reliefs sought at the court below are grantable in the circumstances of this appeal. Consequently, relief (a) is granted, relief (d) in the sum of One Million Naira only, relief (f) granted, as well as relief (g).” Admittedly, this decision does not clearly analyze how SIM swap or reassignment of telephone lines violates the right to privacy, but since the relief (a) as granted discloses such a conclusion, then it is arguable that such a decision passes as a precedent for such arguments.

In MTN v. Chuks (2024) LPELR-61989 (CA), another subscriber also sued MTN for reassigning his telephone number to a third party, and the High Court awarded ten million Naira in damages. MTN appealed and in allowing the appeal, the Court of Appeal, per Abang, JCA, made some interesting pronouncements, which I will briefly address as follows:

On the use of the telephone line, the court held that “the claim also relates to the Respondent’s inability to use his telephone line. My lords, with the greatest to the learned trial Judge, these are not fundamental rights envisaged under the provisions of Section 37 of the 1999 Constitution as amended… My Lords, what is protected and guaranteed by the provisions of Section 37 of the 1999 Constitution as amended that requires privacy with the greatest respect to the learned trial judge? Telephone conversations, that is, the contents of telephone calls and telegraphic communications.

The court’s position here, with respect, does not show a nuanced appreciation of the privacy of telephone conversations guaranteed by section 37 of the Constitution. For context, section 46 of the Constitution empowers a person whose privacy has been contravened to approach the court for redress. It is too simplistic for the Court of Appeal to frontally rule that privacy cannot be contravened by reassignment of telephone lines without considering the effect of such a swap on the initial owner of the telephone line. I shall demonstrate in the succeeding paragraphs.

How is privacy of telephone conversation contravened?
Usually, privacy of telephone conversations is contravened when there is unauthorized interception, monitoring, access, recording, disclosure, or use of the content or metadata of those communications. In other words, any unauthorized access to a person’s telephone calls or messages—either by interception, disclosure to third parties, or rerouting—violates this constitutional right. From the Chuks’ decision above, it is clear that the Court of Appeal agrees that when a third party gains unauthorized access to the contents of another’s telephone conversation, then privacy is impacted. Now, if a telephone line is reassigned without removing it from a sensitive database (e.g., bank accounts), the new user can access SMS alerts, OTPs, or call logs meant for the original owner. This is a functional breach of privacy, even if the content of voice calls was not directly intercepted. Secondly, where the initial subscriber’s friends and acquaintances who were unaware of the SIM swap send messages meant for their friend to the phone number now possessed by another, this contravenes privacy of telephone conversation since the contents have been accessed by an unintended third party.

In effect, any third party’s unauthorized access to phone-based communications, especially when facilitated by a failure in data management, violates the person’s right to confidential correspondence and private conversation. In this case, the Applicant alleged that his telephone line was unlawfully swapped; hence, by such allegation, he has put forward a plausible/likely case of privacy violation (based on a third party’s access to messages subsequently sent by family and friends), except the telecom company provided a legal basis that grounds an exception. We should not forget that section 46 confers locus standi for actual or likely contravention of fundamental rights—privacy, in this context.

Does SIM swapping contravene the ‘privacy of citizens’?
From the Court of Appeal’s conclusion, it is evident that my Lord, Abang, JCA’s consideration of section 37 is limited to ‘privacy of telephone conversations,’ leading to the complete disregard of the more elaborate phrase of ‘privacy of citizens,’ which was interpreted by the same court in Nwali v. Ebonyi State Independent Electoral Commission (EBSIEC) & Ors (2014) LPELR-23682(CA) thus: “I interpret the phrase ‘privacy of citizens” generally, liberally, and expansively to include privacy of citizens’ body, life, person,
thought, belief, conscience, feelings, views, decisions (including his plans and choices), desires, health, relationships, character, material possessions, family life, activities, et cetera.”

In Nigeria, a person’s telephone number is now attached to (a) his identity through the national identification number (NIN) and SIM registration exercise, (b) bank accounts through bank verification number (BVN), and (c) social media accounts through various platforms, etc. These various use of telephone numbers are intrinsically linked to the individual’s (social) life, person, decisions, relationships, family life, and possessions. Hence, an interference with his access to his telephone number correlatively impacts these aspects of his private life and, consequently, his right to privacy.

Conclusively, even though the textual posture of the right to privacy looks terse under section 37 of the Constitution, a progressive interpretation by the courts will help develop the ‘most valuable of all rights,’ as declared by Agim JCA (now JSC) in Paul Ojoma v. State (2014) LPELR–2294(CA) and Chika Enyinnaya v. State (2014) LPELR–22924(CA). It is worth emphasizing that privacy under Section 37 is not limited to the contents of a telephone conversation; otherwise, if the reasoning in Chuks’ case is to be strictly followed, then it may be interpreted to mean that where a third party even gains access to a person’s call logs/call history, it won’t amount to privacy violations since the contents of the conversations are not exposed. It is my respectful opinion that this is not the essence of privacy rights, which seek to give an individual unfettered control over his personal information—a telephone number inclusive.

Source: thenigerialawyer