By Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

In this digital age and time where Information and Communication Technology is the new normal, people no longer require big conventional cameras to make videos or record happenings in public places, as mobile devices have been manufactured to perform this task at the snap of a finger.

As easy as this may seem, the right to privacy is one Fundamental Right that has not been frequently tested by our judicial system, as injured parties are usually reluctant in instituting such matters because of the ambiguities that surround the said section.

INTRODUCTION

The right to privacy has been referred to as ‘the right to be left alone’.[1] It is a very broad right that encompasses a vast area spanning correspondence, email and internet use, medical history, personal data, eavesdropping, sexual orientation and personal lifestyles.[2]

The Universal Declaration of Human Rights mentions the right as a fundamental human right providing in clear terms, that “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks[3].

The right to privacy has increasingly become more of a pressing issue in this era of information technology and digital media, also dubbed the ‘internet age’, with the proliferation and increased consumption of social and digital media platforms such as Instagram, Twitter, Vimeo and YouTube where information and videos are shared for public consumption. There has also been an increase in the number of people who are devoted to the creation of such content shared on such platforms who are known as content creators.

A popular brand of content creation that these content creators engage in is the creation of prank videos, which often involve filming and recording the carrying out of pranks on unsuspecting individuals going about their business, and sharing these videos on the aforementioned digital media video platforms for the whole world to see. A cursory search on YouTube for prank videos will show a plethora of these videos which every Tom, Dick and Harry can view and sometimes even download. The worrying issue is that most times these videos are filmed and recorded without the permission of the people being pranked, and the aim of these videos is oftentimes to embarrass these people. This is a flagrant violation of their right to privacy and should be protected by law. This legal piece will therefore examine the right to privacy in Nigeria as it relates to the unauthorized video recording of persons.

RIGHT TO PRIVACY UNDER THE 1999 CONSTITUTION

The right to privacy is one of the Fundamental rights, enshrined in chapter four (4) of the Grund Norm, boldly written in Section 37[4] as follows:

“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.

This constitutional provision makes the right to privacy a very important right that must be respected by all persons at all times as a breach of same would amount to the seeking of redress by the injured party.

Notwithstanding the fact the Constitution provides for the right to privacy in the Constitution, there exist certain concerns, as the constitution is yet to resolve longstanding issues that border on the privacy of a person. This is so as the aforesaid section of the Constitution did not do justice to the definition of privacy as far as today’s contemporary society is concerned, as the term ‘privacy’ has evolved to mean different things to different people. The section is now a subject of divergent interpretations as one cannot grasp at first glance what the right to privacy truly entails in its entirety.

Suffice to say that the use of the word “privacy of citizens” in the aforementioned section is so broad that it can be regarded as a blanket right to mean every detail about a person that is generally considered to be out of public knowledge. This fact has been recognized by the Court of Appeal in Nwali v. EBSIEC & Ors.[5] as thus:

“The meaning of the term “privacy of Citizens” is not directly obvious on its face. It is obviously very wide as it does not define the specific aspects of the privacy of citizens it protects. A citizen is ordinarily a human being constituting of his body, his life, his person, thought, conscience, belief, decisions (including his plans and choices), desires, health, his relationships, character, possessions, family etc. So, how should the term, privacy of the citizen be understood? Should it be understood to exclude the privacy of some parts of his life? The Supreme Court following the non-restrictive and liberal approach interpreted it as including the privacy of all his constituents as a human being in Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo (Supra) when it held that “the right to privacy implies a right to protect one’s thought, conscience or religious belief and practice from coercive and unjustified intrusion and one’s body from unwarranted invasion.” Even the trial Court in stating the scope of the right to privacy under S. 37 of the Constitution accepted the non-restrictive approach. This can be seen from its holding that the right includes “privacy in private family life and incidental matters”

As easy as this may seem, the right to privacy is one Fundamental Right that has not been frequently tested by our judicial system as injured parties are usually reluctant in instituting such matters because of the ambiguities that surround the said section.

Albeit, we shall narrow our discourse in the succeeding heading to see whether the unauthorized video recording of persons in public places amounts to a breach of their right to privacy.

IS THE UNAUTHORIZED VIDEO RECORDING OF PERSONS, A BREACH OF THEIR FUNDAMENTAL RIGHT TO PRIVACY?

In this digital age and time where Information and Communication Technology is the new normal, people no longer require big conventional cameras to make videos or record happenings in public places, as mobile devices have been manufactured to perform this task at the snap of a finger. To this end, people are always quick to record the activities of a person in public places without recourse to the fact that the victim may not have permitted the recording of such video under normal circumstances.

While the motive for recording such a video is immaterial, it is pertinent to note that a large part of these videos made of persons in public places contain disturbing content that brings disrepute to the victim. This is so as the victims are usually recorded when they are acting in a certain unnatural way that an ordinary member of the society would consider to be clownish.

The makers of these videos would usually disseminate them online across various interactive service platforms, thereby making the object of the video a subject of caricature. What begs the question now is whether these preceding events are tantamount to a violation of a victim’s fundamental right to privacy? I would answer this poser in the affirmative, as the right to privacy could be construed to mean the right to privacy even in public places.

An argument can be made in tandem with the extant provisions of Section 37 of the Constitution that provide for the right of privacy to include the unauthorized filming of persons in public places. The rationale for this position is premised on the fact that section 37 of the Constitution is not in any way restrictive as it allows for a very much wider interpretation. The Court has agreed with this position in Nwali v. EBSIEC & Ors.[6] as thus:

“It is glaring that there is nothing in the phrase “Privacy of Citizens” or in the entire text of S.37 of the Constitution, and the Constitution as a whole suggesting or compelling a restricted interpretation of the phrase. As couched in such general terms, unless interpreted literally, extensively, and expansively, providing the details of the citizen’s privacy that is protected therein, the phrase will be meaningless and sterile. Every provision in the Constitution was made with the intendment of realizing a particular practical object. Therefore it cannot be presumed that any clause in the Constitution is intended to be without effect.”

The Court further stated in the aforementioned case as follows:

“Where the Constitution states a word or phrase generally or without any limiting words, it is obvious that it intends that the word or phrase should have a general meaning and application, unless other provisions in the Constitution state or suggest the contrary. If there are no other provisions of the Constitution requiring or suggesting the contrary, the Court must apply the word or phrase generally, and will have no power to restrict its application to specific situations. For the above reasons, 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 their plans and choices), desires, health, relationships, character, material possessions, family life, activities et cetera.”

From the above provisions, it can be inferred that where a person makes a video of another in a public domain and circulates same, the maker of the video is in breach of the other person’s right to privacy as enshrined in the Constitution.

CONCLUSION

The question that comes to mind at this point is whether Nigerian legislations can adequately prevent and protect against unauthorized video recording of persons.

With the rapid emergence and usage of technology, the prevalence of unauthorized video recording has increased significantly. It is, therefore, necessary to set up legislations and enforcement mechanisms to tackle this issue which can sufficiently be referred to as a breach of privacy, as it will aid the courts to properly administer justice in current times.

AUTHOR: Oyetola Muyiwa Atoyebi, SAN, FCIArb. (UK).

Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm) where he also doubles as the Team Lead of the Firm’s Emerging Areas of Law Practice.

Mr. Atoyebi has expertise in and a vast knowledge of Technology, Media & Telecommunications Law and this has seen him advise and represent his vast clientele in a myriad of high level transactions.  He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of a Senior Advocate of Nigeria.

He can be reached at atoyebi@omaplex.com.ng

CONTRIBUTOR: Emmanuel C. Sogo.

Emmanuel is a member of the Dispute Resolution Team at OMAPLEX Law Firm. He also holds commendable legal expertise in Data Privacy and Protection.

He can be reached at emmanuel.sogo@omaplex.com.ng.

[1] By Justice Louis D Brandei in US case of Olmstead vs US 277 US .438 [1928]

[2] Yinka Olomojobi ‘Right to Privacy in Nigeria’ < https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3062603>

[3] Article 12, ‘Universal Declaration of Human Rights’

[4] 1999 Constitution (As amended)

[5] (2014) LPELR-23682(CA)

[6] (Supra)

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