Navigating legal seas: Privacy rights, telephone conversations, and data protection in Nigeria

By Habeeb Eyinade, Esq

Do you require the consent of the other party before recording a telephone conversation? This interesting topic became a bone of contention when the High Court of Chhattisgarh, India, was called to make a pronouncement on whether recording telephone conversations without consent infringed the privacy rights of the conversant and whether such recorded conversations were admissible evidence in court. India, as one of the 56 commonwealth states shares an identical legal system and legislation with Nigeria, particularly the Evidence Act and the Constitution.

However, judicial authorities in India no matter how brilliant can only be persuasive and instructive for our use in Nigeria.

A glossary looks at the Indian case (Names of the parties were redacted) which was an appeal on an interim ruling from a family court in India, the family court had given a ruling allowing the respondent/husband to summon the applicant/wife for re-examination because certain conversations were recorded on his mobile phone and he wants to confront his wife with those conversations. Being a novel issue, the learned trial court allowed the said application.

In deciding the appeal at the High Court, Honourable Justice Rakesh Mohan dismissed the family court’s order and ruled that the recording of telephone conversations by the husband without the express consent of his wife infringed on her privacy rights. The ipsissima verba of the court is produced as follows:

“It appears that the respondent has recorded the conversation of the petitioner without her knowledge, behind her back, which amounts to a violation of her right to privacy and also the right of the petitioner guaranteed under Article 21 of the Constitution of India.”

While the insightful decision of the court appraises an important privacy issue, it is essential to note that the decision beams the legal searchlight on a single privacy issue. Several other privacy issues come to bear when using telephones to process personal information without a lawful basis for processing.

One needs to shift the shores of the conversation farther into the hinterland, the eruption of digital innovation, particularly, the limitless possibilities of what a mobile phone can do has created multiple ways for the users to process personal information without the consent of the owner of such information. This has become an endemic that threatens people’s privacy and the protection of their information.

At the ne plus utra of the 2023 presidential election in Nigeria, the media space was heated up with leaked recorded conversations and confidential telephone conversations involving two aspirants out of the three major aspirants to the presidential hot seat.

Amidst this, it is not uncommon in the entertainment industry to leak sex tapes and coveted conversations without the concurrence of the people involved. How about the skit makers who actively prompt unsuspecting people under digital recording to reveal information they may ordinarily not want to be seen by millions of viewers?

As if this were not bad enough, social media users tend to post people’s private chats on the internet just to “catch cruise” or turn such private or intimate information into memes. Unknown to several people, infringement of privacy rights could be disastrous and legally whipping if found to have crossed the limit set by law. As simple as infringing private Information may seem, its consequences could be disastrous for the victims.

Before jumping into the ocean of this conversation, let us paddle the shores of the legal framework of privacy and data protection in Nigeria. It is interesting to note that there is little or no Nigerian judicial authority on the recording of telephone conversations.

*Legal framework of privacy and data protection in Nigeria

Article 12 of 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 attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

Similarly, Section 37 of the Nigerian Constitution provides for the protection of the privacy of Nigerian citizens, their homes, correspondence, telephone conversations, and telegraphic conversations.

Furthermore, the provisions of Lawful Interception of Communication Regulations, 2019, a supplementary to the Nigerian Communication Act, 2003, also give power to law enforcement agencies under certain circumstances, to intercept communications of citizens provided by licensed communication companies in the country.

Parts 2 and 3 of the Nigeria Data Protection Regulations 2019, provide for lawful basis for processing personal data and data subjects rights respectively.

More recently, Nigeria joined the League of countries to comprehensively regulate the privacy and protection of personal information in Nigeria. The Nigeria Data Protection Act, (NDPA) 2023 provides elaborately for the protection of personal information by data controllers and data processors in Nigeria.

*Issues arising

Under the Nigerian Data Protection Act, holding of personal information of other people, no matter how minute, makes you a data processor or even a controller regulated by the Act. By personal information, I mean phone contacts, email addresses, pictures, chats, messages, recordings, account details, genotype and blood group type, health conditions, and other personal information.

Storing these on your mobile phone or knowing them by heart makes you a data controller and or processor. This is because, processing involves storing, copying, pasting, and deleting of information. In simple terms, everyone is a data processor and controller or a potential data controller and professor as the case may be.

A distinction must be made when addressing the processing of personal information that could infringe on privacy rights.

a.           The personal information contains data of the processor and others.

b.           The personal information entirely belongs to other persons excluding the processors.

In the first instance, where the personal information contains data of the processor and others, that is, where the processor is in the picture or the video recording, or his voice was captured in the voice recording, or a chat between two individuals or the processor is involved in any other way in the information generation, then, recording such information is legally appropriate when all of the individuals involved expressly, voluntarily and consent to the recording.

However, where such consent is given, the use of the information can only be for the purpose the consent was given. For instance, where a meeting is recorded for record or reference purposes, the recording can only be stored for reference purposes and not sent to other persons who are not privy to it, nor can it be posted on social media except as otherwise agreed.

Thus, there will be an infringement of privacy rights where a telephone conversation is processed (recording or sharing with third parties) by one of the parties to the conversation. Or where a WhatsApp chat between two individuals is shared or posted to other persons not originally privy to the chat without the consent of the other person.

Notwithstanding the above, anyone who processes personal data will not be liable for infringement where the identity of the other person is protected such that the information cannot be linked to the original owner of the information.

In the second instance, where the personal information entirely belongs to other persons excluding the processors. Processing such information breaches the privacy rights of the persons involved, except the processing is done on a lawful basis.

In other words, tapping into a telephone conversation, recording people’s conversations, pranking unsuspecting people under video recording, and; sharing such personal information amounts to a breach of privacy rights.

*Lawful basis for processing data

One may ask, what is the lawful basis for processing or sharing personal data?

Part IV of the NDPA outlines six lawful bases for processing data. These include;

• Where consent is freely given,

• For the performance of a contract to which the data subject is a party,

• For compliance with legal obligations,

• To protect the vital interest of the data subject or another individual,

• For the legitimate interest of the person processing the data and

• For the performance of an obligation carried out in the interest of the public.

The basis for processing must, however, not override the fundamental right of the person involved.

The basis of processing is further entrenched in Lawful Interception of Communication Regulations, 2019 where law enforcement agencies can intercept the mobile phone conversation of a citizen under a court order. These instances include instances where:

 The information would be in the interest of national security;

 The information would help prevent or investigate a crime;

 The information would protect and safeguard the economic well-being of the country;

 The information would be in the interest of public interest or safety; and

 The information would assist foreign authorities per the International Mutual Assistance Agreement.

*Conclusion

The intersection of privacy rights, telephone conversations, and data protection in Nigeria presents a complex legal landscape. Safeguarding privacy is crucial in this digital age. As Nigeria grapples with issues ranging from leaked political conversations to entertainment industry practices, the legal framework, including the Nigerian Data Protection Act of 2023, becomes a vital compass.

Consent remains paramount, with the legal basis for processing outlined in the Nigeria Data Protection Act. As technology continues to evolve, understanding, adapting, and implementing legal frameworks become imperative to ensuring the protection of personal information.

Habeeb Eyinade is an Associate at Edoigiawerie & Company LP, a full-service law firm offering bespoke legal services with a focus on start-ups, established businesses, and upscale private clients in Nigeria. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. His firm can be reached by email at hello@uyilaw.com.