By A. Isola Osobu Esq, And Kanmi Isola Osobu LP
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Most Data protection and privacy litigants rely on Article 1.1a of the Nigeria Data Protection Regulation (NDPR) 2019 in bringing their action pursuant to the Fundamental Rights Enforcement Rules 2009 and same is reproduced hereunder:
“1.1. The objectives of this Regulation are as follows:
- To safeguard the rights of natural persons to data privacy.”
Relying on the above provision of the NDPR, such Litigants have argued strenuously that a breach of the provisions of the NDPR as it relates to a Data Subject is a breach of Section 37 of the 1999 Constitution of the Federal Republic of Nigeria. It is the opinion of this writer that Litigants who rely on Article 1.1a of the NDPR as a basis for applying to Courts to pronounce same as a breach of their fundamental right to privacy under Section 37 of the 1997 Constitution are overstretching the provisions of the NDPR. The NDPR was not issued pursuant to Section 37 of the 1999 Constitution as such it is not every breach of the NDPR that can be contested under the fundamental Rights Enforcement Procedure Rules, 2009. Same is a breach of the NDPR or the principal legislation save for limited instances where that breach complained of can be subsumed under Section 37 of the 1999 Constitution. Article 4.2(6) of the NDPR, 2019 is very apt on the implication of a breach of the NDPR. In unreported suit No: FHC/AB/CS/79/2020 Between Incorporated Trustees of Law & Rights Awareness Initiative v. National Identity Management Commission, the Learned trial Judge, Honourable Justice Ibrahim Watila considered the fact that the Applicant brought its action pursuant to Section 37 of the Constitution & Articles 1.1, 2.1(d), 2.6 & 4.1(8) of the NDPR and found as follows:
“Having read and digested the above provisions, I am of the opinion that the Applicant cannot choose and pick which statute is favourable to him while neglecting salient part of the statute. By regulation 4.2(6)
“Any breach of this Regulation shall be construed as breach of the National Information Technology Development Agency (NITDA) Act of 2007.”
This provision takes it out if the purview of the fundamental rights action, therefore only a data subject can legally sue for breach of his data and that can only be done under the Nigeria Data Protection Regulation/NITDA Act, 2007.”
The Court in the Incorporated Trustees of Law and Right Awareness Initiative v. NIMC (Supra) having considered the provisions of Sections 37 and 46(1) of the 1999 Constitution held at page 17 of the judgment as follows:
“It is clear therefore that an Applicant must allege that any of his rights contained in Chapter IV was/were contravened or infringed upon, is being infringed or is likely to be contravened. Therefore, before any action can be brought under the Fundamental Rights Enforcement Rules, 2009, they must primarily be reliefs that allege breach of a fundamental right. It is not every perceived breach of a right that falls under the fundamental rights procedure, the root of the breach is important and must come within those rights named specifically under Part IV of the 1999 Constitution – Usman & Ors v. IGP & Ors. (2018) LPELR – 45311.
The Ogun State High Court per Honourable Justice O. Ogunfowora in Incorporated Trustees of Digital Rights Lawyers Initiative v. LT Solutions & Multimedia Limited held a different view as it held that an aggrieved Data Subject whose right under the NDPR has been breach may approach the Court under the FREP Rules just like an aggrieved applicant whose fundamental rights have been breached. In Unreported Suit No: AB/83/2020 Incorporated Trustees of Digital Rights Lawyers Initiative v. NIMC, Honourable Justice A. A. Akinyemi also held that the Applicant’s disclosed no reasonable cause of action under Section 37 in view of its inability to demonstrate a breach of any of the provisions of Chapter IV in the fundamental rights enforcement action brought before the High Court of Ogun State.
It is the opinion of this writer that the pronouncement of the Court in Incorporated Trustees of Law & Rights Awareness Initiative v. National Identity Management Commission (Supra) and Unreported Suit No: AB/83/2020 Incorporated Trustees of Digital Rights Lawyers Initiative v. NIMC (Supra) is good law. A contrary decision of the Court may open the floodgate of Fundamental Rights litigation that have absolutely nothing to do with the provision of the Chapter IV of the Constitution.
While this writer appreciates the impact of the breach of a Data Subjects rights under the NDPR, 2019, this writer is of the opinion that the NDPR 2019 addresses same notwithstanding some of its short comings as such to suggest that the same procedure of enforcement for breach of fundamental rights should be adopted for a breach of the provisions of the NDPR as relates Data Subjects would be an overstretch of the FREP rules. The challenge with equating a Data Breach to a breach of Fundamental Rights is glaring for all to see. The Constitution is the ground norm and the Chapter IV of same ranks high than ever other provision of the Constitution.
While some commentators have suggested an amendment of the FREP Rules to accommodate breaches of a Data Subject’s rights under the NDPR, this writer posits that the jurisprudence on Data Protection and Privacy is still emerging as such it should be allowed to develop its own enforcement procedure rather than adopt the FREP Rules for its enforcement. Such breaches may only be accommodated under the FREP Rules only in situations where same also constitutes a breach of the Chapter IV of the 1999 Constitution.
Written By A. Isola Osobu Esq, And Kanmi Isola Osobu LP, dotunosobu@gmail.com 08034550471
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