The Data
Protection Bill (HB 01) 2019
 which is before the Nigerian
Senate and has been passed by the House of Representatives is set to ensure
that all data belonging to residents of Nigerians would be stored in servers
situated within the territory of Nigeria. This principle is known as data
localisation or data residency.

Section 36 of the bill
proposes that

” The Data
Commissioner shall mandate Data Controllers and Data Processors of Personal
Data pursuant to this Bill, to record, systematize, accumulate, store, host,
amend, update and retrieve Personal Data on devices that are physically located
within Nigeria’s territorial jurisdiction.

The bill further provides in
section 49 that a contravention of section 36 would lead to a fine of
8,000,000.00 (Eight Billion Naira) or not less than ten years imprisonment. The
passage of this provision would lead to online Content sharing and service
providers such as Google, Facebook, Whatsapp, Microsoft would have to store all
personal data belonging to data subjects in Nigeria within Nigeria. The
provision is set to create jobs for Nigerians.

Renown Nigerian privacy
professional and data protection lawyer Adavize
 was of the opinion that while the intentions of the drafters may
be genuine the data localisation provision of the bill is a protectionist
clause which seeks to help Nigerian businesses and secure data within Nigeria.
Alao stated that the bill may lay to rest the horror of the Nigerian government
having to deal with cybersecurity threats or individuals worrying about the
right to privacy. 

Alao also stated that the
provision is merely ratifying what Clause 12.1 of the Guidelines for Nigerian
Content Development in Information and Communications Technology (ICT) released
by the National Information Technology Development Agency (NITDA) in 2018
stipulate on the storage of subscriber and consumer data.

The lawyer also added that
the data protection clause would lead to a development known as splinternet or
cyber-balkanization which means the segregation of the internet by various
regions due to factors such as technology, nationalism, commerce and laws.

He further noted that a
fundamental flaw with data localisation policies is that it has the effect of
undermining innovation and may stifle the development and advancement of
Nigeria’s IT sector.

Ridwan Oloyede a research
fellow at African Academic Network on Internet Policy and
Nigerian Lawyer shared his view on data localisation. The lawyer stated that
while data localisation could create new jobs and a thriving industry, it
decimates the borderless nature of the internet and hurt trade liberalisation
facilitated by cross-border data transfer. “The digital economy depends on the
cross-border mobility of data.”

The legal practitioner
advocated that in extreme situation, it could impact the use of basic services
like social media, restricts access to information, facilitate censorship and
limit free expression.

According to Oloyede, “For
entities operating within Nigeria, it means, the imposition of onerous
obligations to comply. Think of the economic cost of setting up and maintaining
a data centre, and separation and movement of data. Think of slower operational
process. Data localisation is a clog on innovation. It’s a trade barrier and an
unreasonable burden on businesses.

“The provision of Section 36
and 49 of the Bill on data localization is confusing and would be subject to
possible contention. The provision merely stated data should be stored
physically in Nigeria without distinguishing whether it is sourced outside
Nigeria, about residents in Nigeria, or outside the scope of the Bill, and it
appears not to tolerate an exception. 

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