by Legalnaija | Feb 23, 2021 | Uncategorized
With the high rate of internet penetration in the country and the growing use of social media. Every business must aggressively employ the use of social media to reach its targeted audience and market.
As law firms and lawyers directly communicate with the communities they serve, social media becomes a natural way to acquire new clients and establish your practice as a thought leader in your area of expertise.
There are many benefits to using social media for your law firm and at Lawlexis, we would love to help you accomplish all your digital marketing and social media management goals for your law firm or legal practice. Kindly contact us for free consultation via –
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by Legalnaija | Feb 18, 2021 | Uncategorized
In establishing any organizational endeavor, an employment contract must be
drawn up. In Nigeria, the employment relationship is governed primarily by the
sources of employment laws in the country. A proper understanding of the laws
that govern an employment relationship and adherence to laws that guide
employees’ rights and employers’obligations, can protect the company from
serious human rights violations.
This article provides a guide to laws governing the employment relationship
in Nigeria, from the sources of the law, the scope of the law, to the tenets of
a typical employment contract.
There are two(2) broad categories of employees in Nigeria, namely:
·
“Workers”, defined under the Labour Act as those “who are
generally employees who perform manual labour or clerical work”; and
·
“Employees”, who perform administrative, executive, technical or
professional functions (referred to as “Non-workers”).
THE SOURCES OF EMPLOYMENT LAW IN
NIGERIA.
The sources of employment law in Nigeria are:
a.
The
Constitution of the Federal Republic of Nigeria 1999 (as amended), referred to
as “the Constitution”.
b.
The
Labour Act Chapter L1, Laws of the Federation of Nigeria 2004 (“Labour Act”),
which prescribes the minimum terms and conditions for employment for workers as defined above. As stipulated
by the Labour act of Nigeria, the details of an employment relationship between
workers and employers should be stipulated in a contract. The Nigerian Labour
Law provides a detailed look into the rights, conditions, minimum wage and many
other tenets set by the Nigerian Government. The current version of the act was
enacted in 2004.
c.
The
Federal laws enacted by the National Assembly (Nigeria’s national legislative
houses) and the State laws enacted by the House of Assembly (the State
legislative authority) of each state, that relate to labour and employment,
pension and workplace compensation, including the following:
●
Guidelines
for the Release of Staff in the Nigeria Oil and Gas Industry, 2019.
●
Employees
Compensation Act 2010
●
Factories
Act FI, LFN 2004
●
Industrial
Training Fund Chapter 19, LFN 2004 (as amended)
●
National
Health Insurance Scheme Act, Chapter N45, LFN 2004
●
National
Oil and Gas Industry Content Development Act 2010
●
Pension
Reform Act 2014
●
Personal
Income Tax Act P8, LFN 2004 as amended by the Trade Union (Amendment) Act 2011
●
Trade
Disputes Act, Chapter T8, LFN 2004
●
Trade
Unions Act, Chapter T14, LFN 2004 as amended by the Trade Union (Amendment) Act
2005
●
Nigeria
Data Protection Regulation 2019 issued by the National Information Technology
Development Agency.
d.
Decisions
of the Nigeria courts – case law, and
e.
International
conventions, treaties and protocols relating to labour, employment, workplace,
industrial relations or matters that connect, which have been ratified by
Nigeria.
SCOPE AND APPLICATION OF THE SOURCES
OF LABOUR LAW
★
The Labour
Act, which is limited in its scope of application as it regulates only the
employment of workers as defined above.
★
The
Constitution, the NICN Act, the Trade Union Act and the Personal Income Tax Act
apply to all categories of employees, with some exceptions.
★
The
Pension Reform Act 2014 applies to all employees in the private sector, other
than judges, members of the armed forces and the intelligent and secret
services.
★
The
Employees Cooperation Act applies to all employees other than members of the armed
forces (although it applies to members of the armed forces employed in a
civilian capacity)
★
The
Industrial Training Fund Act applies to every employer in Nigeria which employs
more than 5 persons, or which employs fewer than 5 persons, but has an annual
turnover of up to 50 million naira.
★
The
National Health Insurance Scheme Act applies to employers which have a minimum
of 10 employees.
★
The
Immigration Act 2015 applies to employers which employ foreign nationals and to
expatriate employees.
TENETS IN AN EMPLOYEE CONTRACT
1.
The
name of the employer and the undertaking where the employee is employed;
2.
The
name and address of the worker;
3.
The
date of engagement;
4.
The
nature of employment;
5.
If the
contract is for a fixed term, expiration date should be stated;
6.
The
period of notice for termination;
7.
The
rates of wages and method of calculation;
8.
The
manner and periodicity of payment of wages;
9.
Terms
and conditions relating to hours of work, holidays and holiday pay, incapacity
for work due to sickness or injury including any provisions for sick pay; and
10. Any special conditions of the contract.
*Special conditions include
Provision of Transport, Annual holidays, Collective Agreements operative in the
Industry or sector and other requirements as the employer may deem fit or as
the employer’s duties may require.
TERMINATING THE EMPLOYMENT CONTRACT
It is required that employers be given notice of termination of their
employment or salary in lieu of such notice.
➔
The
minimum notice period for workers as
defined above in the Labour Act are as follows:
1)
One
day, if the length of the service is up to 3 months.
2)
One
week, if the length of service is up to 2 years.
3)
Two
weeks, if the length of service is up to 5 years.
4)
One
month, if the length of the service is 5 years or more.
➔
It is
agreeable for parties to agree to longer notice periods in their contracts of
employment.
➔
Regarding
employees
as defined above, the applicable notice period is determined by the terms of
their respective contracts of employment.
Written by:
Oluchi Atoyebi (Mrs.)
Mrs. Oluchi Lynda Atoyebi, is the Principal Partner
and CEO of Eclat Human Resources Consulting Limited. She is a seasoned human
resource executive with several years of progressive experience in developing
and executing comprehensive management strategies and structures across
industries. She has achieved great results through using a people-first system.
Mrs Oluchi Lynda Atoyebi has her certifications in Human Resource Management under
the institutes of Chartered Institute of Management (CIPM) an MBA in Human
Resource Management from the prestigious Nile University of Nigeria with her
first degree in Political Science from the esteemed Amadu Bello University
(ABU), she has held several executive and consulting positions and she is
currently the Human Resource Director of Omaplex Law Firm, the fastest growing
and pacesetting law firm in Nigeria.
With several professional certifications in HR and
Etiquette, Mrs. Oluchi Atoyebi is driven by the passion to impact the
lives of people positively by helping to build the capacity to become
employable locally and internationally.
This passion led to the establishment of Eclat Human
Resources Consulting Limited which is focused
on enabling individuals and corporate bodies achieve their desired outcome
through the provision of workable systems, structures, and people.
by Legalnaija | Feb 16, 2021 | Uncategorized
A Gospel song writer says and I quote “What do we do when we don’t know what to do? Where do we run to when we don’t know where to go? And what do we say when we don’t know what to say?” I must confess that I don’t know what to say about the death of Chief Hon. Olubunmi Olugbade. I have been inundated with calls from friends and colleagues wondering whether the news of his death is true and how. Even though I do not know what to say, it has become inevitable for me to say something in his honour.
Let me start by saying that nobody no matter how powerful can add one second to his life. Secondly, I also recognise as a believer that there is no accident in predestination. Hence, the scripture says “that there is a time to be born and there is a time to die.” The timing of these two great events of life is beyond the knowledge and comprehension of any man. With this understanding, no one can query God. “Kabio osi!”
Hon. Olubunmi Olugbade died exactly a week ago from today, February 9th, 2021 after a protracted illness. He was aged 61. Hon. Olugbade’s death is much more painful to me because I know that he carried the sole responsibility of looking after his six (6) children, his wife having died earlier in June 2018. Three (3) of these children are under 20. He was on sick bed for several months. I cannot help but to say that death is cruel and that devil, the author of death is wicked but I have a word for the children. That when the devil is at its worst, God is always at His best.
Hon. Olubunmi Olugbade was a good man. A very sincere and loyal friend, highly passionate and committed to relationship. A very brilliant Legal Practitioner and an outstanding Politician in Ekiti State. He was a former Honourable Member of the House of Assembly of Ekiti State where he made a mark. He was a former Chairman of Nigerian Bar Association, Ikere Branch, Ekiti State and a former member of the National Executive Committee of the Nigerian Bar Association. He was a great player and indeed an influencer in the affairs of Egbe Amofin – the South-west caucus of Nigerian Lawyers. A transparent and honest man, highly reliable, unreservably selfless and absolutely committed to any cause that he believed in. I also know as a fact that he was a traditional title holder of Apelua of Ilawe, Ekiti and a great confidant of our traditional ruler back home.
The great legend Chief Obafemi Awolowo once said “All that I want in life is to live for history. To live for history is not to die but to be in the hearts of all men and to be in the hearts of men is to serve them selflessly.” You served your community to the utmost best of your ability and capacity as Chief Apelua of Ilawe Ekiti. You served your State very diligently as a honourable member of the House of Assembly and you served your profession creditably to the level that circumstances and situations permitted the opportunity. Above all, you served God dedicatedly through the platform of the Redeemed Christian Church of God. You therefore shall be in the hearts of so many people, too numerous to count and from different levels of humanity. Therefore, Chief Hon. Olubunmi Olugbade, you are not dead. You have barely transited from mortality to immortality. You are alive in our hearts.
I pray that God Almighty, the father of the fatherless shall rise up mightily for the children and other relatives that you left behind. He shall raise men and women for them and for their needs. When they need you, they shall see God.
Rest in perfect peace!
Dated 16th February, 2021.
DELE ADESINA SAN
PAST GENERAL SECRETARY,
NIGERIAN BAR ASSOCIATION.
by Legalnaija | Feb 16, 2021 | Uncategorized
The
Finance Bill 2020 has been enacted into law by President Mohammadu Buhari on December 31st 2020, taking
effect from 1st January 2021.
It has made over 80 amendments to 14 different laws following hot on the hills
of the Finance Act 2019 which came into force on 13th January 2020. The Act has made several reforms to
some tax and regulatory laws in the country; it has even included certain
incentives towards the recent COVID-19 pandemic. In this article, we will be
examining the significant changes the Act has made to various laws in Nigeria.
Changes to the Personal Income Tax Act
(‘PITA’)
·
Redefining
gross income for PAYE tax purposes. Section
33 (2) of the PITA was substituted with the following:
“For
the purposes of this section, “gross income” means income from all sources less
all non-taxable income, income on which no further tax is payable, tax-exempt
items listed in paragraph (2) of the Sixth Schedule and all allowable business
expenses and capital allowances”.
The idea behind this is to prevent a situation
where non-taxable income (such as reimbursable, employer’s contribution to
pension), franked investment income (such as dividend) and tax-exempt items are
considered in the computation of Consolidated Relief Allowance (CRA).
·
Re-introduction
of life assurance premium tax relief. The newly re-introduced subsection 3 of
33 states:
“There
shall be allowed a deduction of the annual amount of any premium paid by the
individual during the year preceding the year of assessment toany insurance
company in respect of insurance on his life or the life of his spouse, or of a
contract for a deferred annuity on his own life or the life of his spouse”.
·
The Act
also mandates that Schemes or Societies, to which contribution to a pension,
provident and retirement benefits fund is made to, should be recognized under
the Pension Reform Act.
·
The
Finance Act introduced a proviso to Section 37 of PITA which provides that
minimum tax under its section as provided for under the Sixth Schedule to this
Act shall not apply to a person in any year of assessment where such a person
earns the National Minimum Wage or less from such employment.
In other words, any individual earning
National Minimum Wage which is N360,000 annually or less is exempted from
payment of personal income tax.
·
Introduction
of the concept of Significant Economic Presence (SEP) to Personal Income Tax.
Changes to the Companies Income Tax Act
(‘CITA’)
·
Minimum
tax for companies in respect of returns for years of assessments due between 1st
January 2020 and 31st December 2020 has been reduced from 0.5% to
0.25% of gross turnover less franked investment income.
·
FIRS
may prescribe the form of accounts other than audited financial statements form
small and medium companies.
·
Service
of notice of assessment and objections may be done by courier service, email or
other electronic means as may be directed by the FIRS in a notice. Tax Appeal
Tribunal may conduct its hearing remotely via virtual means, using such
technology or application as may be necessary to ensure fair hearing.
·
Public
character for the purpose of tax exemption requires an organization or
institution to be registered in accordance with relevant laws in Nigeria and
does not distribute or share its profits in any manner to members or promoters.
·
For
companies operating in Free Trade Zones, exemption from taxes is subject to
compliance with tax filing and returns obligation to the FIRS under Section 55
(1) of CITA.
Changes to the Stamp Duties Act
·
The
introduction of a one-off levy of N50 known as the Electronic Money Transfer
Levy on electronic Money Transfer Levy on electronic transfers and deposits of
money in the sum of N10, 000 or more to replace the imposition of Stamp Duties
on such transfers. This levy is to be accounted for by the person to whom the
transfer or deposit is made and will be distributed between the Federal and
State Government on a derivation basis of 15% and 85% respectively.
Changes to the Federal Inland Revenue
Service Act
·
There
is a requirement for Federal Inland Revenue Service (FIRS) to utilize adhesive
stamp produced by the Nigerian Postal Service when denoting documents by
adhesive stamp.
·
Requirement
for companies operating in the Free Trade Zones to file returns with the FIRS.
·
Accountant
General for the Federation to open dedicated accounts for each tax type for the
payment of tax refunds to be administered by the FIRS and fund based on annual
budgets for tax refund for each tax-type as may be approved by the National
Assembly.
Changes to the Value Added Tax Act
·
Exclusion
of land and buildings, money and securities from the definition of goods and
services for VAT purposes.
·
A
non-resident that makes a taxable supply to Nigeria is required to register for
tax and obtain TIN, include VAT on its invoice, and may appoint a
representative in Nigeria for the purpose of its tax obligations.
·
Exemption
of commercial airline ticket from VAT, and hire or lease of agricultural
equipment for agricultural purposes.
·
Exclusion
of land and buildings, money and securities from the definitions of goods and services
for VAT purposes.
Changes to the Capital Gains Tax Act
·
Compensation
for loss of office up to N1 million exempted from Capital Gains Tax. Tax due on
excess above N10 million is to be deducted by the payer and remitted within the
time specified under the PAYE Regulations.
Changes to the Tertiary Education Trust
Fund Act
·
Exemption
of small companies with less than BN25 million turn-over from payment of
Tertiary Education Tax.
Changes to the Industrial Development
(Income Tax Relief) Act
·
A
small or medium company engaged in primary agricultural production may be
granted pioneer status for an initial period of 4 years and an additional 2
years (making 6 years in total).
Customs & Excise Tariff
(Consolidation) Act
·
Downward
review of excise duty rates on tractors and motor vehicles for transportation
as well as duty-free importation of aircrafts and its parts for commercial
airlines in Nigeria.
·
Introduction
of excise duty on telecommunication charges at a rate to be prescribed in the
law or an order issued by the President.
·
Reduction
of import duty on tractors from 35% to 10% and reduction of import levy n cars
from 30% to 5%.
Changes to the Companies and Allied
Matters Act
·
Unclaimed dividends ina listed company and
unutilized amounts in a dormant bank account outstanding for 6 years or more to
be transferred to the Unclaimed Funds Trust Fund as a special debt to the
Federal Government to be managed by the Debt Management Office and shall be
available to the shareholder or account holder at any time together with the
yield thereon.
·
Balance
of operating surplus of a corporation shall be paid to the CRF of the
Federation on a quarterly basis.
Changes due to the COVID -19 Pandemic
·
Deductibility
of donations made in cash or in kind to the government in respect of any
pandemic or natural disaster to a maximum of 10% of assessable profit after
other allowable donations.
In
conclusion, based on all the new amendments to the Finance Act, some of which
are actually geared towards meeting the demands of socio-economic changes, it
is advisable that both existing and prospective business owners should seek to
understand the provisions of the Finance Act and the implications on how
business is to be conducted in Nigeria going forward. In other words, since
every new law has its opportunities, as well as its challenges, it is expedient
that interested investors examine critically the impact of the amendments and
make the required adjustments needed, especially as regarding payroll tax
calculators.
References
Matthews,
M. 2021, (January 6). President Buhari
Signs the Finance Bill, 2020 into law. Andersen Tax.https://www.mondaq.com/nigeria/financial-services/1023224/president-buhari-signs-the-finance-bill-2020-into-law
Obayomi,
W. 2021, January 6. President Signs the Appropriation Bill, 2021 and Finance
Bill, 2020. Proshare.https://www.proshareng.com/news/Budget%20and%20Plans/President-Signs-the-Appropriation-Bill–2021-and-Finance-Bill–2020/55059
20
Key Changes in the New Finance Act, 2020 You Should Be Aware Of. (2021, January
6). Pwc Nigeria. https://pwcnigeria.typepad.com/tax_matters_nigeria/
Finance
Act 2020 and its Impact on Employment Tax. (2021, January 6). Deloitte. https://www2.deloitte.com/ng/en/pages/tax/articles/finance-act-2020-and-its-impact-on-employment-tax.html
Olajumoke
Ogunfowora
AOC Solicitors
olajumokeogunfowora101@gmail.com
by Legalnaija | Feb 8, 2021 | Uncategorized
I chose this caption advisedly, in spite of my understanding of the Central Bank of Nigeria’s letter dated February 5, 2021 prohibiting “dealing in cryptocurrencies or facilitation of payment for cryptocurrency exchanges.” Nevertheless, I will attempt to justify the caption of my intervention by briefly answering the following questions:
Are cryptocurrencies legal tenders within the regulatory purview of the Central Bank of Nigeria (CBN)?
The CBN would seem to have answered this question in their letter dated January 12, 2017 that: “The CBN reiterates that VC such as Bitcoin, Ripples, Monero, Litecoin, Dogecoin, Onecoin, etc and similar products are not legal tenders in Nigeria….”
Since cryptocurrencies are not legal tenders, one wonders where the CBN derives its arrogated powers to regulate cryptocurrency exchanges especially since the provision of section 2 of the CBN Act and section 1 of the Banks and Other Financial Institutions Act clearly define the perimeters of CBN’s powers and functions, yet none contemplates regulation of “exchanges” in the mould of virtual currencies. I stand to be corrected on this interpretation though.
Apparently, since the CBN was in doubt as to the nature of and appropriate regulatory agency for cryptocurrencies, on the 14th day of September, 2020, the Securities and Exchange Commission (SEC) waded in and cleared CBN’s doubts by issuing a statement to the effect that: “The position of the Commission is that virtual crypto assets are securities, unless proven otherwise” https://sec.gov.ng/statement-on-digital-assets-and-their-classification-and-treatment/ Accessed on February 8, 2021.
On regulating cryptocurrencies, SEC went ahead to state in their circular that: “Similarly, all Digital Assets Token Offering (DATOs), Initial Coin Offerings (ICOs), Security Token ICOs and other Blockchain- based offers of digital assets within Nigeria or by Nigerian issuers or sponsors or foreign issuers targeting Nigerian investors, shall be subject to the regulation of the Commission.”
From SEC’s intervention as seen in their circular, it is indubitable that CBN, with respect, jumped the gun by prohibiting “dealing” in an asset over which they do not have regulatory control and such a knee-jerk approach gives an impression of an ill-timed and “unthought out” entry into an unfamiliar terrain since they admitted in their letter of January 12, 2017 that the area is “unregulated.”
Thankfully, SEC’s position that cryptocurrencies are securities finds support in a US decision in United States of America v Maskim Zaslavskiy (17 CR 647) where District Judge Raymond Dearie ruled that cryptocurrency is a security and that it would fall under the United State’s Security Exchange Commission’s purview.
Enough said on this!
Should CBN’s Letter supersede SEC’s statement on cryptocurrencies?
Section 13 of the Investments and Securities Act (ISA) establishes SEC as the apex regulator of securities. Chambers Dictionary defines the word ‘apex’ as “the highest point.” Hence, it is our modest view that CBN should ordinarily steer clear of virtual currencies since it is outside their areas of competence which ought to be in the exclusive preserve of the SEC.
The CBN’s letter was neither referred to as a circular nor a regulation, hence the legal weight to be attached comes into question. Even if it bears such nomenclature, since SEC is designated the apex regulator of securities by the ISA, then their position should always override that of CBN on issues bordering on cryptocurrencies.
Does the CBN’s letter criminalise dealing in cryptocurrencies or facilitation of payment for cryptocurrency exchanges?
Although CBN’s letter expressly prohibits dealing in cryptocurrency, the source (if any) of such powers is suspect. Assuming they even have such imaginary powers, the courts have ruled that, an offence cannot be created by an administrative circular or letter.
For proper context, in Omatseye v Federal Republic of Nigeria (2017) LPELR- 42719 (CA), the Court of Appeal held that:
“Administrative circulars or notices have its place in government but cannot create an offence. The apex Court in the case of Maideribe v. FRN (2013) LPELR-21861(SC) on circulars held thus: ” Such circulars are- “a common form of administrative document by which instructions are disseminated; many such circulars are identified by serial numbers and published and many of them contain general statements of policy… they are therefore of great importance to the public giving much guidance about Governmental organization and the exercise of discretionary powers. In themselves they have no legal effect whatsoever, having no statutory authority. Exhibit “PD16z” is not known to law and therefore cannot create an offence because it was not shown to have been issued under an order, Act, Law or statute. In the absence of statutory authority in the said Exhibit “PD16z” or legal notice it cannot be said to have any legal effect.”
Until the contrary is established, it is our humble position that, the CBN’s letter dated February 5, 2020 remains in the realm of a mere (administrative) letter as admitted by its last paragraph that: “This Letter is with immediate effect” (Emphasis mine). Hence, it cannot create an offence upon which the Nigerian Police can arrest or harass any dealer in cryptocurrency, as one can already imagine.
Can the Police arrest dealers in cryptocurrencies?
As at press time, there is no law that criminalizes dealing in cryptocurrencies in Nigeria to my knowledge as the provisions of section 36(8) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended) prohibit prosecution for an act which does not constitute an offence at the time of such act. In interpreting section 36(12) of the Nigerian Constitution, the Court of Appeal held in Ibrahim v Nigerian Army (2015) LPELR- 24596(CA) that:
“The ingredients of section 36(12) of the 1999 Federal Constitution as amended (supra) are as follows: “The offence has to be defined in a written law which term refers to:- (i) An Act of the National Assembly;(ii) A Law of a State House of Assembly;(iii) Any subsidiary legislation; or (iv) Instrument under the provisions of a law. The penalty shall also be prescribed in a written law which term refers to:-(i) An Act of the National Assembly;(ii) A Law of a State; or(iii) Any subsidiary legislation; or(iv) Any instrument under the provisions of a law.”
Applying the foregoing parameters to the CBN’s letter, the bank will have to further explain to Nigerians whether it is intended to be a subsidiary legislation or it provides penalty as required by the Constitution, bearing in mind the meaning of subsidiary legislation and the decision of the Supreme Court’s decision in Comptroller General of Customs v Gusau (2017) LPELR – 42081 (SC) to the effect that, guidelines are not subsidiary legislation, hence there exists no law creating an offence (of dealing in cryptocurrencies) upon which the police can lawfully arrest anyone in Nigeria.
Conclusively, without prejudice to the (right or wrong) economic and socio-political sentiments, whipped up by the CBN in their Press Release of February 7, 2021 justifying the prohibition, it remains this writer’s respectful opinion that the apex bank overstepped its regulatory boundaries by usurping the statutory powers of the Security and Exchange Commission to regulate securities in the mould of cryptocurrencies.
Photo credit – cfo.com
by Legalnaija | Feb 4, 2021 | Uncategorized
THE
NEED FOR DATA PROTECTION IN THE MODERN WORLD
According
to OECD in 2015, data is seen as the very infrastructure underlying the
modern digital economy.
To
succeed in the modern economic environment, businesses and technology models
heavily rely on huge amount of data to thrive. Top companies lik
e Facebook,
amazon and google, some of the world’s digital economy leaders, are leaders in
the business world due to their access to immense amount of data from their
users which they then apply with their algorithms. it helps keep their market
at a remarkably high level.
The
questions of who owns the data, who gets access to it and whether data is
something that can be owned in the first place is yet to be settled. In the
same vein, it leaves us with so many questions on intellectual property rights.
Although
there exists bits and pockets of legal frameworks for data, the EU’s General
Data Protection Regulation (GDPR) which came in force in 2018 took centre
stage and replaced most existing data laws, particularly Directives 95/46/EC (the
Data Protection Directive) and 2002/58/EC (the ePrivacy Directive). Other
new regimes like the California Consumer Privacy Act (CCPA) which became
operative on the 1st of January 2020 is also a subject of much
discourse.
HOW
HAS DATA PRIVACY REGULATORY FRAMEWORKS RECOGNISED INTELLECTUAL PROPERTY RIGHTS?
The
question that keeps arising is, how much does these laws recognise Intellectual
Property rights?
One
thing that is certain is that IP rights are not expressly spelt out in most
data protection laws and some may even have counter effect on IP. Under the
GDPR for example, right owners wishing to take action against domain name
owners whose domains have infringed their trademarks, design or copyright, will
find it harder to obtain details of a UK domain name owner allegedly infringing
their rights due to the consent provision of the GDPR.
Similarly,
the GDPR does not recognize company rights but just personal rights. The
European Commission (EC) stated that the rules only apply to personal data
about individuals and do not govern data relating to legal entities.
The
Nigerian data protection regulation (NDPR) also takes a similar approach to
data rights. The NDPR defines a ‘data subject’ as a person who can be
identified directly or indirectly, by reference to an identification number or
to one or more factors specific to his physical, physiological, economic,
cultural or social identity. It also defines personal data as information
relating to an identified or identifiable natural person which may be a name,
address, photo, email address, bank details, posts on social networking
websites, medical information, etc. thus,
Giving
the restriction of data subjects to majorly natural persons only, the current
data protection regime has left a huge void regarding intellectual property
rights.
TRADE SECRET PROTECTION: ARE THEY ENOUGH?
Trade
secrets arguably enjoy the most protection under the current data protection
laws. The Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) sets out standard minimum levels of protection of trade secrets as
Intellectual Property Rights and provides a definition of the information that
can be protected, focusing on these three requirements:
(i)
Secrecy,
(ii)
commercial value; and
(iii)
reasonable steps to keep the
information secret.
Trade
secrets regime in the EU has been recently regulated by Directive (EU)
2016/943 (“Trade Secrets Directive”). As evinced from Recital 10 and
Article 1 of the Trade Secrets Directive, the aim of the Directive is not
to introduce a full EU trade secrets regime, but rather to reach a partial
harmonisation through a minimal standard of protection, leaving room for Member
States to provide for more far-reaching protection.
TRADE SECRETS UNDER THE CALIFORNIA CONSUMER PRIVACY ACT
(CCPA)
The
CCPA particularly provides an interesting cover for trade secrets. Generally,
the CCPA allows California consumers to request that a business disclose the
specific pieces of personal information (PI) the business has collected. The
consumer also may request that the business delete any PI about the consumer
that the business has collected. If a business is able to verify the identity
of the consumer making the CCPA request, it must comply with the request unless
one of the enumerated exceptions applies. Unexcused failure to do so exposes
the business to a civil action by the California Attorney General for
injunctive relief and civil penalties of up to $7,500 for each violation.
The
question now is, what happens if the personal information covered by the
consumer request includes information considered as trade secret data? Given
the wide meaning of both PI and trade secrets under the CCPA, a conflict in
this regard is inevitable.
Although
the CCPA does not provide a clear-cut safe harbor to address this dilemma, a
potential argument that may support a decision to withhold trade secret data
when responding to a consumer request may arise.
HOW TO DETERMINE THE OWNER OF IP PARTICULARLY IN AI
DRIVEN TECHNOLOGIES THAT RELY ON DATA?
Seeing
that Artificial Intelligence (AI) is already becoming omnipresent in our
everyday life, the development raises broad and multi-disciplinary policy
questions, including several aspects of intellectual property (IP). Much like
the countries in which they operate, an increasing number of corporations are
convinced that AI will be essential to maintaining a leading position in the
future.
Determining
the owner of an IP right in AI driven technologies are quite complicated.
Biometrics, as an AI initiative provides a brilliant case study. The GDPR
includes specific provisions for biometric data. In particular, the GDPR covers
the processing of biometric data for the purpose of uniquely identifying a natural
person. Biometric data is data resulting from specific technical processing
relating to the physical, physiological or behavioural characteristics of a
natural person, which allow or confirm the unique identification of that
natural person, such as facial images or dactyloscopic data.
A
company that is desirous of collecting the biometric (or other prohibited data)
of an EU citizen, the company must be able to demonstrate that it has met an
exception to the GDPR’s general prohibition. A non-exhaustive list of these
exceptions include: that the EU citizen has given explicit consent for a
specified purpose for the data; that processing the data is essential to
protect the vital interests of the individual and he or she is incapable of
giving consent; or that processing the data is necessary for the purposes of
preventive or occupational medicine, and subject to the conditions and
safeguards referred to in the GDPR.
In
addition to meeting one of the exceptions, a company must also comply with data
protection requirements and obligations. For example, a company must provide EU
citizens with the right to be forgotten, meaning that an individual shall have
the right to withdraw his or her consent at any time. This can lead to severe
penalties for the company for failure to comply. The question then arises, at
the point where consent was yet to be withdrawn, who owned the intellectual
property right? If it is the company, do they lose that ownership when the data
subject decided they want to be forgotten?
In
this regard, it could be argued that ownership of IP rights in big AI resides
with the data subjects and only upon certain exceptions can companies use it.
INTELLECTUAL
PROPERTY AND ARTIFICIAL INTELLIGENCE: FOCUS ON COPYRIGHTS.
The
global technology transition brings into question several fundamental IP
concerns. Seeing that most IP laws were written at a time when only natural and
human intelligence were contemplated, AI challenges many traditional IP legal
notions such as originality, copying, author, designer, and inventor among
others. Arguably, when AI systems are engaged to perform creative or other
cognitive tasks, the prevailing humanistic approach to IP is not well suited to
protect the generated results.
Let’s
look at copyrights for example. Under EU and American copyright law, copyright
protection applies to the expression in any form of a computer program,
provided that the program is original in the sense that it is the author’s own
intellectual creation. In respect of the criteria to be applied in determining
whether a computer program meets the originality requirement, no tests as to
the qualitative or aesthetic merits of the program should be applied.
However,
ideas, methods and principles which underlie any element of a computer program,
including those which underlie its interfaces, are not protected by copyright.
Only expressions of intellectual efforts are protected. In addition, since no
registration is necessary for copyright protection to arise (with varying
exceptions), collection of evidence may sometimes be difficult.
In
conclusion therefore, from an economic standpoint, the scope of copyright
protection (and other IP protection including trademarks and trade secrets) for
an AI system is insufficient. Seeing that copyright will not protect the
creativity, skill and inventiveness devoted to the development of the
functional concept behind an AI system, it may be recommended not to rely
solely on copyright law and data protection laws. The current data regime
completely ignores this possible insufficiency. These insufficiencies for the
main time are best circumvented via a robust contractual agreement, although it
has its inadequacies, especially when dealing with a large number of data
subjects.
DATA
RIGHTS AND DATABASE RIGHTS: ACHIEVING AN EQUILLIBRIUM BETWEEN DATA RIGHT
PROTECTION AND INTELLECTUAL PROPERTY PROTECTION UNDER NIGERIAN LAWS.
On the back of several reports of privacy
violations against Facebook, the United States Federal Trade Commission imposed
a $5,000,000,000(Five-Billion Dollar) fine on the company in July, 2019.
Earlier in January, 2021, social media giants – Twitter, permanently suspended
the account of Former American President, Donald Trump for inciting violent
protests at the Capitol (the Nation’s legislative building) via his tweets on
the platform.
What indeed is the nexus between these
narratives? Simply put, the former narrative on the fine imposed on Facebook
encapsulates the importance placed on the need to protect data rights as
contained in databases. The later relays the great extent to which the owner of
an intellectual property can exploit his powers (in this instance, it was
exercised to outlaw a President from social media). Moving forward, it is
without doubt that in several jurisdictions the world over, various laws have
been put in place to uphold various rights and more importantly in this discuss
– data rights and intellectual property rights.
This paper seeks to open a conversation on
the need to ensure that the exercise of database rights by an intellectual
property owner, does not infringe on the data rights of others.
DATABASE
RIGHTS: MEANING AND PROTECTION UNDER THE NIGERIAN COPYRIGHT LAW
Although no Nigerian legislation defines
database rights, in Nigeria, it can be regarded as a literary work eligible for
protection under Section 1, of the
Copyright Act, 2004. For the
purposes of clarity however, the definition of a database under the United
Kingdom’s Copyright and Rights in
Databases Regulations, 1997, may be adopted. Regulation 6 of the Regulation defines a database as ‘a collection
of independent works, data or other materials which are arranged in a
systematic or methodical way, and are individually accessible by electronic or
other means’.
Therefore, in basic terms, a database right
refers to the intellectual property right accorded to a person in recognition
of the effort put in forming/creating a database.
As earlier stated, these rights are accorded
protection under the Copyright Act of Nigeria. Consequently, the owner of a
database enjoys the protection of the following rights as a copyright owner:
1. Economic rights: These rights aim at
safeguarding the financial interests of a copyright owner by conferment of an
exclusive right to exploit the work commercially. They consequently provide the
following benefits:
·
Enhance the market value of a business by
leveraging on the goodwill provided by ownership of IP.
·
A source of earning as they can be
licensed/assigned
2. Moral rights: These seek to
protect the integrity of the author’s work as it encapsulates the reputation of
a copyright owner. To this end, the law will operate to prevent a copyright
owner’s work from being used in a manner contrary to the owner’s wishes or
without his prior approval.
THE
STRENGTHS OF THE NIGERIAN DATA PROTECTION REGULATION (NDPR), 2019 IN PROTECTING
DATA RIGHTS.
As earlier established, database
rights under Nigerian law enjoy the benefit of copyright protection which
enable a copyright owner to exploit the benefits therein. However, whilst the
law will recognise and afford protection to the ingenuity of an author
(copyright owner) who has exerted effort in compiling such a database, such a
compilation must be done in a manner that does not infringe on the rights of
others. It is indeed in this regard, that the issue of Nigeria’s data
protection regime comes to fore.
Whilst they exist pockets of industry
specific legislations on data protection in Nigeria, the Nigerian Data Protection Regulation (NDPR), 2019 constitutes
the only comprehensive and holistic piece of data protection in Nigeria. The
regulation principally seeks to ensure that the processing of the data of
Nigerians is carried out lawfully in a manner consistent with the privacy
rights of Nigerians.
Since its coming into force, the NDPR has
strengthened the nation’s data protection framework by ushering in a number of
laudable developments as follows:
1.
Enhanced
Privacy Rights: The NDPR most importantly, has articulated
the privacy rights of Nigerian citizens guaranteed under Section 37 of the 1999 Constitution as amended. In a landmark
decision, the Federal High Court in Abuja, in 2019, affirmed the data privacy
rights of Nigerians and ordered the Nigerian Information Management Commission
to protect the data rights of Nigerians beyond merely having bogus security
policies which it had prior to the suit, failed to implement. [See Incorporated Trustees of Paradigm
Initiative for Information Technology (PIIT) & Sarah Solomon-Eseh v
National Identity Management Commission (NIMC) & Anor)].
Essentially,
the NDPR preserves the data rights of Nigerians by requiring all data
controllers (organisations processing the data of Nigerians) to ensure that in
processing (making use of) the data of Nigerians:
·
consent must be obtained;
·
it must be in the interest of the data
subject or in public interest;
·
for
the performance of a contract which the data subject is a party to, amongst
others.
2. Commitment to Ensuring Data Protection: The NDPR
also solidifies the commitment of the Nigerian government in ensuring that all
cybercrimes and associated threats linked to breaches in data bases are
addressed. Article 2.6 of the NDPR
places a duty on all data processors to put in place security measures to
protect data which amongst other things include setting up firewalls,
protection of emailing systems and employing data encryption technologies.
Reports indicating that 588 businesses
have filed data audit reports with
the National Information Technology Development Agency (NITDA) as at August, 2020, as opposed to a near zero
compliance level before the
inception of the NDPR is indeed a silver lining in the quest for data protection in Nigeria.
3. Expansion of Nigeria’s Job and Wealth
Creation Potential:
In
Nigeria, the National Information and Technology Development Agency (NITDA)
licenses Data Protection Compliance Officers (DPCOs) to not only provide data
audit services, but to provide general training on data compliance which
obviously comes at a cost to data controllers patronizing such DPCOs thereby
fuelling wealth and job creation. In a similar vein, an avenue is created for
the government to generate funds through licensing fees for DPCOs and
applicable fines for breach of data rights.
In
capturing the wealth and job creation potential available via the NDPR, Isa Pantami, Nigeria’s Minister of
Communications and Digital Economy in
an interview in September, 2020, observed succinctly:
“One of my
greatest sources of joy on the Regulation is its job creation potential. Over
1.5 million businesses and non-governmental organisations would need to file
Data Audit Reports on or before March 15 every year. Each of these reports must
bear a Verification Statement, sign and seal of a licensed DPCO. If each DPCO
provides service for an average of 50 Data Controllers, we would need over
300,000 professionals to meet this need.” [Available
On: Premium Times, ‘The Huge
Prospects of Nigeria’s Data Protection Regulation 2019, By Isa Ali Ibrahim
Pantami’ (Premium Times, 16 April 2019) accessed 7th September
2020].
THE
CHALLENGES OF THE NDPR IN PROTECTING DATA RIGHTS
Although, the provisions of the NDPR are
laudable and set the tone for much potential in Nigeria’s efforts at achieving
a world class data protection status in which all data rights are protected,
nonetheless, there exist few challenges:
1. Scope: The NDPR only
guarantees data protection for Nigerians in Nigeria (Article 1.2 NDPR). Consequently, the regulation does not extend
protection to non-residents. In contrast, the General Data Protection
Regulations, GDPR (applicable to countries in the European Union) has
extra-territorial provisions governing such outsourcing needs. See Article 3 of the GDPR.
2. The Status of the NDPR: It has been submitted, that the efficacy of
the provisions of the NDPR is watered down as it is not a legislation.
Consequently, in the event of a conflict between the regulation and statute,
the later shall prevail. For example, the provisions of the Cyber Crimes Act, 2015, on the release
of personal data pursuant to Court orders and statutory fines, will take
precedence over the NDPR. In sharp contrast however, the provisions of the
General Data Protection Regulations (applicable to the European Union) is a
substantive legislation of parliament.
3.
Deterrence Measures: In light
of the serious damage privacy infringement may occasion and the huge profits
earned by infringing companies doing business, it is observed that the penalty
imposed by the regulations should be made weightier. Article 2.10 of the NDPR imposes a fine of 2% on domestic gross
annual revenue or 20 Million Naira, whichever is greater on companies (handling
above 10,000 data subjects) in breach of the regulation. With the combined
values of the top tech companies Facebook, Netflix, Google and Amazon placed at
2.3 trillion dollars in 2018, the 20 Million Naira fine under the NDPR should
be increased to deter violations.
THE WAY
FORWARD: RECOMMENDATIONS
Nigeria’s quest to achieving a compliant data
protection status capable of securing database rights and indeed all other
ancillary intellectual property rights cannot be achieved overnight. Nonetheless, the above issues discussed are
cardinal and must be tackled as a first step:
1. Need to Improve Capacity: It is
germane that NITDA as the principal body for data protection in Nigeria
consolidates on its successes and takes steps to improve further. Whilst the
agency must be applauded for opening investigations into a number of alleged
data breaches, notably breaches by TrueCaller,
Surebet247 and the Lagos Inland Revenue Service, the absence of sanctions
or the non-publicity of same must be addressed. The agency must begin to impose
sanctions on defaulting organisations. The NITDA should take a cue from
countries within the European Union which have imposed a minimum €114,000,000 in fines since the
inception of the GDPR in 2016.
2. Scope of the Act: The
definition of data under the NDPR must be reviewed to explicitly include
non-electronic data. This will ensure
that data not electronically stored is also afforded protection. Such an
amendment must also include an obligation on data controllers to inform data
subjects of data breaches thus affording such subjects the opportunity to take
extra precautionary measures and further ultimately bring the NDPR into
conformity with international best practices on data protection.
3. Increased Licensing Capacity: Lastly,
it is firmly believed that by licensing more competent data compliance
officers, market forces would operate to dictate cost of data audit reports and
associated due diligence on data compliance. This would remedy the effect of
the current regime were high compliance costs currently cripple the efforts of
data controllers at achieving compliance.
4. Passage of the Digital Rights Bill: The
Nigerian Government must take steps in ensuring that the Digital Rights Bill is
passed into law. Following President Buhari’s non-assent to the Bill, the
National Assembly must take the bull by the horn to ensure passage by
addressing the reasons for the President’s decline of assent (for e.g. the
failure to address specific digital rights extensively). The Act, if passed
will not only crystallise the data rights of Nigerians it would also allay all
fears pertaining to the genuineness of Nigeria’s data protection regime.
CONCLUSION
This Legal content appraises the role of the
intercourse between Data protection and intellectual property rights from a
global and ever evolving purview, while succinctly addressing the need for an
improvement in the Global and Nigeria’s data protection framework with a view
to ultimately ensure that a balance is achieved in the protection of data
rights and database rights.
Written
by: Oyetola Muyiwa Atoyebi, SAN
Mr.
Oyetola Muyiwa Atoyebi, SAN is a seasoned Intellectual Property and data protection expert with over
a decade’s worth of experience in legal practice and technology. He has
facilitated numerous transactions and given countless legal opinions on Intellectual
property and data protection inclined matters in Nigeria. Against the backdrop
of his stellar expertise, Atoyebi has also facilitated several panel
discussions and engagements on Intellectual Property and data protection.
He
is the youngest lawyer in Nigeria’s history to be conferred with the highly
coveted rank of a Senior Advocate of Nigeria (SAN). Mr. Atoyebi is also a recipient of countless
awards given in recognition of his sterling contributions to the growth and
development of law and technology.
He
is the Managing Partner of OMAPLEX Law Firm, an established law firm driven by
technological innovation. As an expert in emerging areas of law practice, he
has core competence in Intellectual property, Data protection, Cyber Security,
Fintech, Robotics and Artificial Intelligence.
by Legalnaija | Feb 4, 2021 | Uncategorized
I was in
my office one fine day when my good friend Mr. B paid me a short
friendly/business visit. While we had our usual chat exchanging pleasantries,
he would take occasional pauses when he spotted anything new and interesting to
show me and as usual I could not but look; as I like gist like that. One of the
interesting topics he showed me was a new Pepsi advert featuring the famous female
rapper Cardi B. In this advert (in summary), the customer at a restaurant/bar
requests for a coke to which the waiter replied, oh we don’t have coke; but is
a Pepsi ok? Cardi B in dismay asks the waiter “what do you mean is a Pepsi
okrrrrr, of course a pepsi is okrrrr.. etc”. While we both found this advert hysterical,
Mr. B’s question quickly turned our entertainment into an academic journey.
He asked
with the remnants of laughter “is this legal though?”. Being the lawyer in the
room, I knew I had to give a cogent answer even if this was not a topic that I
had really done any research on. I was able to use my sharp girl common sense
to give a semblance of an answer with plenty English so that I didn’t look
completely empty.
Now this
new topic brought back memories of other similar adverts of Pepsi, mentioning Coca-Cola
and using their logos in Pepsi adverts with seeming disregard. Mr. B believed
very strongly that this act had to be illegal in many ways or could at least
lead to some sort of legal liabilities. He also wondered why the Business Giant
Coca Cola have never sued or retaliated in any way or, at least none that we
know of.
This topic
also brought my mind to the similar and most recent advert play stunt or “bank
wars” on social media between Sterling Bank Nigeria and other banks, where sterling
bank played a subtle card by using logos of other banks to show superiority
while also casting subtle insults, i.e. indicating sluggishness or low performance
of its competitors to which the other banks fired back in their individual
smart ways.
I’ll
give a brief summary of my answer to the Pepsi-Coca-Cola Saga, (I hadn’t done
any research at the time so don’t judge me) I believed the fact that other
companies don’t engage in what I describe as brand bashing is due to simple advertising
ethic. This opinion was more based on the fact that Coca Cola cannot possibly
be afraid to take Pepsi on in a brand war or legal suit over trademark issues.
This argument helped me get by that day, but I definitely knew that this was
the shallowest of answers and I got away with it by sheer luck.
Moving
smartly along, a few weeks after I finally overcame the spirit of
procrastination, I discovered that the issue of Brand Bashing is quite a
serious matter globally and has been dealt with over the years in different
ways regionally, essentially meaning different countries have their own laws
and registers for trade mark and brand protection. There have however been a concerted effort to make
intellectual property and brand protection laws
more uniform through international treaties and international intellectual property
rights systems/platforms and forums such as the 1886 Berne convention, 1996 WIPO
copywrite treaty (WCT), 1883 Paris Convention, TRIPS Agreement
(To be discussed in another Paper). It
should however be noted always that only party countries are bound by such
systems and conventions. Furthermore, the majority of rules created are for the
protection of registered marks and not the economic activities among competing
brand owners.
But
before going any further, I have to first practice the age long culture of
defining brand bashing.
Definition
Advertising
is defined as ‘any message, the content of which is controlled directly or
indirectly by the advertiser, expressed in any language and communicated in any
medium with the intent to influence their choice, opinion or behavior.’
Brand Bashing on the other hand also known as Comparative or
competitive advertising is therefore any advertising or promotional
technique which directly or
indirectly identifies a competitor, goods or, services offered in order
to claim the superiority of its product over that of the competitor by direct
or indirect comparison..
TYPES OF
COMPARATIVE/COMPETITIVE ADVERTISING.
There
are generally 2 types of comparative advertising
a.
Direct comparative advertising: this occurs when other
products are mentioned by their name (and not as ‘brand X,’ ‘brand Y,’ etc.)
b.
Indirect comparative advertising: Here no other
brand names are mentioned. The Brand X and Y analogy is used here to contend
that one brand is superior to all or most others.
There
are generally 2 schools of thought on this issue. One school in favor of the
use of competitive advertising, and the other is against it. Those that are in favor
believe that competitive advertising will have the effect of pushing
manufacturers to improve their products in order to avoid embarrassment from
the public and competitors; while those against argue that consumers may be
duped by unscrupulous advertisers who either fail to present fair and truthful
comparisons, or overload customers with false information.
Whichever direction we may lean in; the fact remains that the use of
comparative advertising has a potential to lead private lawsuits globally as
regulations to control comparative advertising are still in evolutionary stages.
This therefore means that without clear cut rules, there are many legal issues
that may arise out of comparative advertising when advert practitioners get
carried away in search of creative ways to boost their brand. Such legal issues
may include infringement of intellectual property rights, Libel or slander,
passing off of brand logos etc.
With
such a globally controversial issue it is seen that many regions have developed
similar laws to tackle this matter with national specificity. Nigeria is no
exception to this phenomenon as there are no known laws directly dealing with
the issue of comparative advertising. The closest I got to dealing with these
issues are:
a.
Section
5 of the Trademarks Act
which generally safeguards the registered brands of trademark holders giving
the right to sue for passing off.
b.
The Nigerian Communication Commission
Guidelines on Advertisement and Promotion (NCCGAP) which
(as the name implies) deals only with communication practitioners. and
provides for fairness in advertising practices among communication
practitioners. It states that “comparative advertisement must not
unfairly disparage, discredit, or attack other products, services,
advertisements or companies, or exaggerate the nature and importance of
competitive differences”.
But this deals only with communication practitioners
c.
The Federal Competition and Consumer
Protection Act
protects consumers from false misleading or deceptive representation concerning
a material fact.
While
the Trademarks Act gives the right to sue for passing off, this article touches
on issues that involves also the use of the said brand mark to gain economical
advantage by a competitor who is/are largely at par with one another on the
economic playing field; I’ll easily put this topic on the same line as cyber
bullying but for commercial brands. Sort of like cyber bullying a cyber bully.
Having
established the fact that competitive advertising can become quite messy due to
inadequate guidelines and possible overzealousness and or of advertising
practitioners; the question here is (focusing on the advantages of comparative
advertising) how best can comparative advertising be executed without
attracting a lawsuit. A few general rules for comparative advertising can be
followed. For example, fairness; A balance mut be struck between
competitiveness and minding your business so to say. Fairness as it relates to
comparative advertising means carrying out comparative advertising without
disparaging the products or services of the competing brand. To be
accomplished, certain elements must be observed as a guideline as follows:
·
The advert must be truthful and verifiable: The facts
stated in the comparative advertising must be factually correct so as not to
deceive or mislead the potential customers. This means that the facts should
not only be true on the face of it, they should be verifiable.
·
Use of trademarks and logos: the
use of a competitor’s product, logo, or motto is more common in direct
competitive advertising. This makes this form of advertising much bolder and
more dangerous for advertisers as such acts could entitle aggrieved brand
owners to damages for the unauthorized use of their marks. It is therefore
advised that the use
of competitor’s brand name, initials or mark must not be unjustifiable nor
the goodwill attached to the trademark or symbol of another brand be unfairly taken
advantage of.
·
Products must be similar: goods or services must meet the same needs and
for the same purpose. The yard stick for similarity could be that the
product or service must have one or more material, relevant, verifiable and representative
features, and must be with the same designation of origin in order to stand as
competitors.
·
Must not be misleading: The
consumer should not be misled as a result of the comparison being made, whether
about the product advertised or that with which it is compared.
·
No Unfair disparagement: While
engaging in comparative analysis the advertisers must ensure that their
advertisements observe fairness in competition. By this I mean that the advert
must not unfairly denigrate attack or discredit other products.
An advertiser can say that his goods are better than his
competitors. For example, the advertiser is allowed to glorify his goods as
good, better than all others, or the best in the world, but cannot say the
other goods or product x, y, z are bad. Comparative advertisements are limited
to mere puffs. Any statement indicating that a competitors’ goods are bad may
amount to slander/ defamation of competitors and their goods, which is not
permissible.
Now
going back to the Pepsi and Coca-Cola saga as well as the bank wars which seem
like brutal advertising strategies defying all my story on fairness being the
fulcrum of comparative advertising, it still leaves the question of how come no
major lawsuits have sprung up from these ongoing advert wars. My personal take
is that the concerned brands have practiced what I call permitted
comparative advertising; by this I mean that either by agreement or
complacency, parties allow the stare up of drama in order to gain joint
publicity. Brilliant don’t you think? There is no such thing as bad publicity
as some wise person said. In these circumstances such advertisements are more
of cooperation and collaborations, encouraging one another to practically go
crazy on each-other’s brands up to whatever limits parties may have set. Publicity
stunts like this have been adopted by many brands in the past and used as tools
to attract public curiosity and popularity in the long run. This tactic I
believe, was used in the bank wars stated above, and if I may say so myself, it
worked like a charm. There can be no legal liabilities where parties strictly
adhere to their agreement on comparative advertising.
by Legalnaija | Feb 1, 2021 | Uncategorized
Privacy and data protection (as a practice area) is relatively nascent and in its developmental stages in Nigeria: the main legislation are inadequate or inelegantly drafted, the regulator is facing legitimacy and capacity challenges, many professionals are few and ill-equipped, industry practitioners a little bit laid back and ultimately, the government is, regrettably, sluggish with its legislative attempts towards birthing a principal legislation for data protection.
From my experience as a privacy litigator, the first issue that confronts an Applicant in Nigerian courts is, whether or not data protection is actionable as a fundamental right to privacy, or they are to be approached as one of those statutory rights litigable under the regular civil procedure as opposed to the sui generis approach under the Fundamental Rights Enforcement Procedure Rules 2009.
Some notable Nigerian academics and legal practitioners have embraced two schools of thought along the lines of their professional convictions and proclivities, while seemingly situating same on their perceived state of the relevant data protection legislation in Nigeria.
Data Protection is not Privacy (First School)
Academia
From an academic perspective, Dr. Adekemi Omotubora, a senior lecturer at the University of Lagos appears, with respect, the most vociferous and consistent Nigerian proponent of this school of thought, who doesn’t spare blushes when expressing her belief that data protection should be distinguished and severed from right to privacy. In the wake of issuance of Nigeria Data Protection Regulation in 2019, the learned academic penned an instructive article on “The NITDA Regulations on Data Protection: A Peculiarly Nigerian Approach?” wherein she asserted that:
“The critical point here is that the assumption underlying an objective to safeguard ‘a right to data privacy’ in the Regulation is misguided if not unconstitutional. It is misguided because it shows lack of understanding of the conceptual differences between privacy and data protection. It is unconstitutional because it aims to safeguard a non-existent right to data privacy. Therefore, unless we can argue, presumably ingeniously, that it is possible for the NITDA Regulation to create a right to data privacy, then the entire Regulation could be challenged for its unconstitutionality.”
Again, in March 2020, she co-authored a scholarly paper titled “Next Generation Privacy” published in Routledge Information and Communications Technology Law Journal where she posited that:
“Perhaps to further underline the distinction between the two concepts, the Charter of Fundamental Rights (CFR) created a separate right to data protection in article 8 although the authorities had already proclaimed that protection of personal data must be seen as fundamental to a person’s enjoyment of his or her right to respect for private and family life as guaranteed by Article 8 of the Convention….While it remains unclear whether and how a new fundamental right to personal data and a change in nomenclature (from privacy to data protection) would herald a new jurisprudence of data protection, it is clear that the EU law now considers the interchangeable use of privacy for data protection an anomaly.”
Litigators’ Submission
From the practicing lawyers’ perspective, the Law Firm of Templars (one of Nigeria’s largest commercial law firms) recently released a publication titled “Enforcing Data Subject Right Under Nigeria’s Data Protection Regulation: The Wrong Way (And the Right Way)” wherein they pitched their tent with this school of thought as follows:
“…we would readily throw our weight behind the FHCN’s decision. The reason is not far-fetched. The FHCN’s reasoning that, a breach of a Data Subject’s rights under the NDPR cannot be remedied by way of an action brought under the FREP Rules aligns with the basis for FREP Rules, as a specialized procedure reserved for enforcement of fundamental rights under Chapter IV of the Constitution or the African Charter… In light of the foregoing backdrop, it may not be out of place to adjust the FREP Rules in a way that would make the Rules readily amenable and flexible to accommodate emerging rights, such as the Data Subject’s rights in the NDPR, that are similar to the rights of citizens specifically provided for in the Constitution. But until such an adjustment, it may be important that originating processes with the reliefs sought in an action brought under the FREP Rules, are carefully couched to avoid being thrown out of court at a preliminary stage of the proceedings. The substantive or principal claim must be in relation to a breach of a fundamental right as contained in Chapter IV of the Constitution or African Charter, while the ancillary claim may be a breach of the provisions of the NDPR. Better still, and perhaps, a better approach, would be to make a claim for breach of the NDPR and NITDA Act a stand- alone proceeding, rather than lumping it together with a fundamental right enforcement action under the FREP Rules. That way, any unnecessary controversy with its attendant risks, can be avoided.”
Judicial Decisions
In two separate judgments delivered by the Federal High Court in 2020, the very hardworking late Hon. Justice Ibrahim Watila (God rest his soul) did not mince words when his lordship held that data protection has nothing to do with right to privacy under section 37 of the Nigerian Constitution and actions bordering on data breach cannot be validly brought under fundamental rights procedure. (See the unreported decisions in Suit No. FHC/AB/CS/85/2020 between Digital Rights Lawyers Initiative and Unity Bank and Suit No. FHC/AB/CS/ 79 between Laws and Rights Awareness Initiative and National Identity Management Commission delivered in December 2020.
Data Protection is cognizable under Right to Privacy (Second School)
Academia
Dr. Lukman Adekunle Abdulrauf, a lecturer at the University of Ilorin, is arguably Nigeria’s most prolific scholarly writer on data protection with several papers published in local and international journals and length his weight to this school of thought that posits data protection as a human right.
In his co-authored work published in Springer’s Liverpool Law Review titled “Personal Data Protection in Nigeria: Reflections on Opportunities, Options and Challenges to Legal Reforms” he contends that’s:
“Without ignoring the strengths of the arguments in favour of data protection as commercially driven, there is an equally stronger movement in favour of data protection as a human right. The contention is that anchoring data protection on economic success rather than human rights will naturally have the effect of relegating privacy and autonomy to the background…. In spite of the commercial purposes, there is no denying that data protection has its roots in the right to privacy in international human rights instruments like the Universal Declaration of Human Rights (UDHR),57 International Covenant on Civil and Political Rights (ICCPR)58 and European Convention on Human Rights (ECHR).59 Thus, the normative basis of data protection is in human rights instruments which arguably makes it a human right too… Based on the above, data protection can be said to be a composite human right because of its strong attachment to the right to privacy and other human rights.”
In the same school, another prolific academic, Dr. Bernard Jemilohun of the Ekiti State University wrote in his paper “Regulations or Legislation for Data Protection in Nigeria? A Call for a clear legislative Framework” that:
“Data protection legislation is a form of human right protection legislation and it will amount to gainsaying to think all that is about data protection is just about technology and the need to develop its use or prevent the abuse thereof.”
Litigators’ Perspective
In 2020, the Alliance Law Firm via its erudite principal partner, Mr. Uche Val Obi, SAN (author of Nigeria’s only book on class actions) published a paper titled ” An Extensive Article on Data Privacy and Data Protection Laws in Nigeria” where the learned Silk states that:
“As is applicable to most jurisdictions, Nigeria’s data privacy and data protection regime emanates from the fundamental legislation of the land i.e. the Constitution of the Federal Republic of Nigeria 1999, as amended (“the Constitution”), which, by virtue of section 37 thereof protects the rights of citizens to their privacy and the privacy of their homes, correspondence, telephone conversations and telegraphic communication. Data privacy and protection are thus extensions of a citizen’s constitutional rights to privacy.”
Judicial Decisions
Earlier in 2020, the High Court of Ogun State (per Akinyemi, J. and Ogunfowora, J.) in two separate judgments unequivocally held that right to privacy under the Constitution extends to data protection. (See Suit N. AB/83/2020 between Digital Rights Lawyers Initiative and National Identity Management Commission and Suit No. HCT/262/2020 between Digital Rights Lawyers Initiative and LT Solutions Media Ltd)
Conclusion
I had the privilege of participating in all the judgements referred to in this piece and since they are all subject of pending appeals, I will refrain from stating my position. That said, the law on relationship between data protection and privacy remains unsettled within and outside the Nigerian courts. Hence, anyone can safely pitch his tent with any of the schools of thought and still remain on the right wicket since none of the decisions are yet to be set aside on appeal.
Ultimately, until we have the benefit of an appellate court decision on this all-important industry issue or a remedial legislative intervention, the banters on the nature of data protection rights as fundamental or ancillary claims will continue for a long time and this may not augur well for the stakeholders, especially the courtroom practitioners.
