Law and The Economy

Examinations: Data Subjects’ Rights Under the Nigerian Data Protection Regulations 2019

INTRODUCTION

Humans were created naturally to dominate their environment, and part of their evolutionary quest in this regard has been the creation of the computer, internet and later day artificial intelligence (AI), internet of things (IoT) and Blockchain (BC). We live in a digitised world. Businesses and organisations deploy data analytics to derive insights with which they make decisions about their consumers and enterprises. As beautiful as this may sound, the world is becoming unsafe for data subjects[2] (DS) because the more our world is digitised, the more users’ data is processed and our privacy endangered.

The extensive processing of data[3] could jeopardise DS data and infringe on their rights if specific laws and safeguards are not implemented. The use of  artificial intelligence (AI) such as facial recognition could create racial discrimination,while deepfakes lead to misrepresentation and harassment  of people.[4] The use of social media exposes us to many online threats- cyberbullying, extracting consents, overexposure and faithless friend.[5]  The IoT makes creates vulnerability to online attack and hackings.

WhatsApp introduced a new privacy policy to share more commercial user data with its parent, Facebook.[6]Many people saw this as a further impingement on the privacy of the users/subscribers. To ensure that data is lawfully collected and adequate measures established to protect users, the European Union passed General Data Protection Regulation 2018 (GDPR).[7] Sequel to this, Nigeria followed suit by releasing the NDPR in 2019 to protect the rights of (DS). In the light of the above, this article seeks to examine the rights of DS under the NDPR to explore the extent of protection accorded users and enforcement mechanism in cases of breach whilst highlighting compliance obligations on DC and PD.

UNDERSTANDING THE RIGHTS OF DATA SUBJECTS

In many developed countries, the right to data protection (DP) is a fundamental human right (FHR).[8] In Nigeria, the position seems unsettled, with two emerging schools of thought. The first believes that DP is an extension of the right to privacy as provided in the 1999 Constitution[9] and an FHR. The second school of thought argues strongly that DP is not privacy and cannot amount to FHR under section 37 of the constitution.[10]

Whatever the case, DS is entitled to some rights against misuse, abuse, and unlawful      processing of theirdata. These rights apply to only human persons and not to artificial legal persons.[11] Therefore, data belonging to corporations are not protected under the NDPR. However, the PD of the company’s alter ego is protected. These rights are identified as follows:

  1. Right to be informed of the processing

Any data controller (DC) wanting to collect, use, consult or process personal data[12] (PD) of DS must inform such DS about the processing and its extent.[13] This means that companies, institutions or individuals must tell DS what data they are processing and the purpose for such processing in a clear, plain, concise, transparent and intelligible manner. It is a key manifestation of the transparency principle that suggests that DC must be open and provide clear and concise information about what is done with their data.

The information shall be in writing, or other means, including, where appropriate, by electronic means.[14]When requested by the DS, the information may be provided orally, provided that the identity of the DS is proven by other means. The information to be provided by the Controller includes the identity of DC, contact of Data Protection Officer (DPO), the purpose of processing, the legitimate interest pursued by the DC or the third party; period of storage, recipients or categories of recipients and the existence of other rights.[15]  “The risk inherent with processing data of data subjects without their knowledge is the tendency to subject them to discrimination or disadvantages and prevent them from exercising their rights”.[16] Complying with the right is essential to foster trust in public institutions and give private organisations an edge over competitors.[17]

  1. Right of access

A DS has a right to access their data and obtain a copy of their PD, and other supplementary information from an organisation processing PD, which may or may not include payment of a fee depending on the circumstances of the case;[18] provided such access will not infringe on the right of others. The right is exercised through Data Subject Access Request (DSAR), and the essence is to bring to fore why and how data belonging to the DS are used and to check if the processing is lawful.[19] Thus, Paragraph 3.2(xi) of NDPR Implementation Framework 2020 enjoins DC to design their systems and processes to make data requests and access seamless for DS.

For instance, students (DS) based on this right can request their school or other institution that has their information to provide such information to  them at no cost. According to a writer: “An individual is only entitled to access the personal data about them, and not the information relating to other people (unless he/she is acting on behalf of someone). Therefore, it is crucial to establish whether the information requested falls within the definition of personal data”.[20]

Also Read: Overviews: Naicom’s Corporate Governance Guidelines for Insurance and Reinsurance Companies 2021 (CGGIRC)

The right as postulated gives life to other rights such as rectification, erasure or objection to further processing.[21] This is because DS first need to gain access before they can erase, rectify or object as the circumstances may require. NDPR did not provide the form the request can be made. Consequently, it can be in writing or oral, including social media, provided it presents a clear intention of the DS to ask for their PD.  NDPR did not provide that a third party relative, friend or solicitor can request DS and what happens when the request affects the third party.

However, according to Information Commission Office(ICO) Guide to GDPR, a third party-relative, friend or solicitor can be instructed by the DS to make a request on their behalf[22]  and where the information requested affects a third party and the possibility of disclosing such information without necessarily revealing that other third party’s information is not forseeable, request may not be complied with except consent is obtained from the third party.[23] The time limit for a response was not factored in the NDPR. Still, DC is expected to inform DS within one Month, reason for not taking action and on the possibility of lodging complaints with a supervisory authority.[24] The information requested should be provided in an accessible, concise and intelligible format.

Reasonable effort should be exerted towards finding and retrieving the requested information provided searches would not be unreasonable or disproportionate to the importance of providing access to the information. Aside this, access can also be refused if it is manifestly unfounded or excessive. DS should be informed the reason for the refusal and their right to seek enforcement in court or from the Supervisory Authority.

  1. Right to Request Deletion

The NDPR’s Articles 3.1(9) and (7) (h) empowers DS to request that their PD be deleted or erased. This is also known as right to be forgotten or de-referencing. This right creates an opportunity for DS to make mistakes without fear of old mistakes or failures coming back to haunt them. For instance a person who no longer wants to operate a particular social media account can request the host to delete the account.

This right is not absolute and only applies in certain unique circumstances such as, where: (a) the PD are no longer necessary in relation to the purposes for which they were collected or processed; (b) the DS withdraws consent on which           the processing is based; (c) the DS objects to the processing and there are no overriding legitimate grounds for the processing; (d) the PD have been unlawfully processed; and (e) the PD must be erased for compliance with a legal obligation in Nigeria.

Where PD was divulged to others, steps must be taken to contact the controllers and inform them about the request to delete.[25] If the request to delete is received without any exemption, both the live and backup systems must be deleted and the implication clearly communicated to the DS.[26]    If an exemption is made for data in the backup system, it must not be used for any other purpose until it is overwritten.

Whilst the GDPR’s Article 17(3) provides several exceptions[27] to this right, NDPR’s Article 3.1(7)(h) has no exception. Nonetheless, we can rightly assume that outside the circumstances listed in (a-e) above, the right to delete can be refused. NDPR did not specify the form the request should take, therefore, it can be made orally or in written form to any part of the organisation.[28] An employee of an organisation can receive the request on behalf of the organisation. However, It is advised that the information be given to the management of the institution.

In Google Spain, Google Inc. v. Agencia Espanola de Proteccion de Datos (AEPD) & Mario Costeja,[29]the CJEU held that data subjects have a right to erasure or, more specifically, to remove any links shown by the search engine to their names. The Court acknowledged the fact that the processing of personal data, such as those of Mr. Costeja, is liable to significantly affect the fundamental rights to privacy and data protection when it is possible to search for an individual using his or her name. However, where this right will infringe on freedom of expression or there is a general public interest to have access to this information such as when DS are prominent figures in the public life and information about them must be known to those who are interested in it.[30]

  1. Right to restrict processing

DS has the right to restrict the processing of PD in stated circumstances.[31] These are, where the: (a) accuracy of the PD is contested by the DS for a period enabling the Controller to verify the accuracy of the PD (b) processing is unlawful, and the DS opposes the erasure of the PD and requests the restriction of their use instead; (c)  controller no longer needs the PD for the purposes of the processing, but they are required by the DS for the establishment, exercise or defence of legal claims; and (d) DS has objected to processing, pending the verification whether the legitimate grounds of the Controller override those of the  DS.

For instance, a school website may mistakenly list a DS as a second class honours student, instead of first class that such DS actually had. The DS has the right to request restriction of further processing of personal information pending the verification of the accuracy of the information by the school. This right may serve as an alternative option to the right for erasure and closely linked to the right for rectification and objection. A DS who challenges accuracy and seeks rectification of PD can, at the same time, request restriction of the processing pending such rectification or objection.

Where processing is restricted, it cannot be reopened without the consent of the DS except in the establishment, exercise or defence of legal claims or for the protection of the rights of another natural or legal person or for reasons of important public interest in Nigeria.[32]

In circumstances, that the data are disclosed to others, effort must be made to inform them about the restriction placed on processing of PD. As earlier discussed, NDPR did not provide the format request for restriction should be. This leaves it open to any permissible format whether to be in writing or oral form including social media depending on the circumstances of the case.

  1. Right to portability

Data Portability simply means the ability to transfer data from one IT system or computer to another through a safe and secured means in a standard format.[33] DS have the right to receive from controllers PD concerning them in a structured, commonly used and machine-readable format and to transmit these data to other controllers without hindrance  provided: firstly, the processing is based on consent, or secondly, on a contract, and thirdly, the processing is carried out by automated means (excluding manual files). [34]

If it is technically possible, PD can be directly transmitted from one Controller to another provided that this right shall not apply to processing necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the Controller.[35] In essence, this gives the DS free will to manage and reuse their PD. Thus, a DS can copy his data in Facebook to twitter or other IT platforms and vice versa,seamlessly.

  1. Right to object to processing

Every user has the right to object to processing of PD at any material time.[36] The objection may be with respect to particular PD or to all of the PD or to a particular purpose data is being processed. An individual can object to the processing of their PD for direct marketing at any time including profiling. The Controller must ensure a mechanism for objection free of payment. This right prevails on the Controller to stop from further processing of PD. A DS who does not want to be receiving direct marketing mail can object to it without necessarily being deprived of the right to access the website. A face-it or leave it option will amount to data breach.[37]

Right to object to processing can be expressed in any form, oral or in writing including social media and conveyed to any part of the organisation. The execution of the objection must be done within one month, all things being equal. [38]

  1. Right to rectification

By Article 3.1(7) (h), (8) and (13) NDPR DS are entrusted with the right to correct inaccurate PD without undue delay and have incomplete PD completed subject to the purposes for the processing. This may include making available the supplementary statement to the incomplete data. Irrespective of the steps          taken ab initio to ensure accuracy of data by Controller, once a request for rectification is made, an obligation is imposed on the Controller to timely reconsider the accuracy of the data.

The NDPR does not define “inaccuracy”. However, under the UK Data Protection Act 2018,  PD is inaccurate if it is incorrect or misleading as to any matter of fact. The issue of determining inaccurate data is a very complex one. For instance where a data refers to a mistake that has subsequently been resolved, it may be possible to argue that the record of the mistake is in itself accurate and should be kept.[39] However, the fact that a mistake was made and the correct information has been included in the individual’s data should be expressed. Once a request for rectification is made, the DC is expected to restrict processing pending verification of the accuracy of the data whether or not DS exercises right to restriction. DC can refuse rectification if satisfied that the PD is accurate, but must inform DS the reason behind the decision and their right to make a complaint to court or Supervisory Authority.

The NDPR did not specify the form (whether in writing or verbally) the request for rectification can be made in any form and to any part of the organisation including the employee. It needs not possess the phrase “request for rectification” or the relevant articles of the regulation to be a valid request. It will suffice once the content challenges the accuracy of the PD in issue. Where data was disclosed to a third party, steps must be taken to inform them about the rectification provided such steps will not amount to disproportionate effort.

  1. Right to withdraw consent

The condition of a freely given consent attracts to itself right to withdraw such consent. DS have a right flowing from the right to consent to withdraw whatever consent they have given provided such withdrawal does not affect lawful processing which took place prior.[40] The DS shall be informed prior to giving consent that they possess similar right to withdraw consent and that it shall be easy to withdraw such consent. “In principle, consent can be considered to be deficient if no effective withdrawal is permitted”.[41] The basis of consent to PD processing is to grant individuals with autonomy to freely elect how others can use their personal information.[42]

Also Read: ‘Data Colonialism’: Comments on National Information Technology Development Agency (NITDA)’s Advisory on WhatsApp’s New Privacy Policy in Nigeria

Even though NDPR did not provide means of withdrawing consent, it has been contended that consent can be withdrawn through any of these means: a termination of a user account, uninstallation of a game or other way of ending the usage of a service.[43]

  1. Right in relation to automated decision making and profiling

Automated individual decision making is a decision made by automated means without any human intervention such as an online decision to award a loan or a recruitment aptitude test which uses pre-programmed algorithms and criteria.[44]  While automated individual decision-making often involves profiling, it does not have to always be. NDPR requires the Controller to inform the DS prior to processing of PD, the existence of automated decision-making, including profiling and at least, in those cases, meaningful information about the logic involved as well as the significance and the envisaged consequences of such processing for the DS. [45]

NDPR did not define the meaning of profiling. However, under the GDPR[46] it is defined as “any form of automated processing of personal data consisting of the use of personal data to evaluate certain personal aspects relating to a natural person, in particular to analyse or predict aspects concerning that natural person’s performance at work, economic situation, health, personal preferences, interests, reliability,            behaviour, location or movements”. In essence organisations collect personal information of DS from different sources and with the help of AI classify individuals into different groups or sectors. This analysis identifies links between different behaviours and characters to create profiles for individuals .[47]

Organisations use profiling to find something about individuals’ preferences, predict their behaviours; and /or make decisions about them. Automated individual decision-making and profiling can lead to quicker and more consistent decisions. But if they are used irresponsibly it will amount to significant risks for individuals.[48]Therefore, controllers are restricted from conducting automated decisions including profiling that portends certain significant effects on individuals without their consent.

  1. Right to lodge complaint with the regulator

Article 3.1(7) (j) NDPR empowers DS to lodge complaints to the National Information Technology Development Agency (NITDA) whenever breach of their data rights are occasioned. The Agency upon receipt of the complaint will constitute an Administrative Redress Panel (ARP) to conduct investigation and determine appropriate redress within 28 working days.[49] An administrative order may be issued to protect the subject-matter of the allegation pending the outcome of the investigation.[50] In furtherance, a 15 member Data Breach Investigative Team (DBIT) was inaugurated by the NITDA Director-General to carry out investigations on breach of NDPR.[51]The Agency is only entitled to award penalty in terms of fine and may not grant remedy to DS as the regulation does not provide for remedies.[52] Nevertheless, this does not prejudice the right of DS to approach court for remedies.[53]

CONCLUSION

As the foregoing discussion shows, the rights offered to DS in Nigeria by the NDPR are not well knitted and encompassing. Unlike in the GDPR, there are no clear cut exceptions to some of these rights, and the form that exercising them should take. Also, the NDPR did not provide remedy for DS where these rights are breached. It is hoped that the Nigerian Data Protection Bill 2020 (NDPB) will provide sufficient answers to many gaping questions on these issues. Notwithstanding, NDPR must be commended for providing these rights and opening up the space which will be consolidated upon by subsequent enactments.

LeLaw Disclaimer:

Thank you for reading this article. Although we hope you find it informative, please note that same is not legal advice and must not be construed as such. However, if you have any enquiries, please contact us at: info@lelawlegal.com.

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