In Nigeria, the extant principal legislation on data privacy is the Nigeria Data Protection Regulation (NDPR) 2019 issued by the National Information Technology Development (“NITDA”) on January 25, 2019, under Section 32 of the NITDA Act 2007 as subsidiary legislation to the NITDA Act 2007. This right to be forgotten has only been recently incorporated into the Nigerian legal jurisprudence. However, this right is not absolute as it will only be granted in certain circumstances. These circumstances as enumerated in Regulation 3.1 (a) of the NDPR include:
1. Where the Personal Data is no longer necessary concerning the purposes for which they were collected or processed. Hence for example, where information was collected as a result of membership of an association and the Data Subject later leaves that association, the ex-member could request that certain data relating to his membership be expunged;
3. Where the Data Subject objects to the processing and there are no overriding legitimate grounds for the processing;
4. Where the Personal Data has been unlawfully processed; and
5. Where the personal data must be erased for compliance with a legal obligation in Nigeria.
While there may not be any judicial authorities on this subject in Nigeria, there are a couple of pending cases on this subject before the Nigerian courts and it is predicted that the cases when decided, will provide a clearer approach on the application of this right for the intent and purposes under the NDPR provisions. One of such cases is the pending suit before the High Court of Lagos State against the online published Punch Newspapers for violating an individual’s fundamental right to Family and Private Life enshrined under Section 37 of the Nigerian constitution as well as seeking for the enforcement of the right to be forgotten as provided under the NDPR.
THE POSITION IN OTHER JURISDICTIONS
In South Africa, their Laws do not explicitly recognise a general right to be forgotten. However, some laws dealing with privacy, access to information and freedom of speech implicitly recognise this right. The Bill of Rights in the South African Constitution contains broad rights to dignity and privacy, though privacy rights can be limited by rights to freedom of expression and access to information. Also, the Protection of Personal Information (“POPI”) Act like most foreign data protection Laws states that personal information may only be stored or used to the extent it is adequate, relevant and not excessive concerning its purpose. Although the POPI does not explicitly grant a right to be forgotten, Section 24 allows data subjects to request responsible parties to correct or delete personal information or records. Other laws in South Africa that shed light on this right to be forgotten include the Promotion of Access to Information Act, Consumer Protection Act, Electronic Communications and Transactions Act and the National Credit Act which allows individuals to access and challenge negative credit- related information which must be deleted by the Credit Bureaux aer the relevant retention period. Foreign and international laws and decisions about the right to be forgotten will usually be relevant or persuasive in a similar matter in South Africa.
In India, this right to be forgotten is yet to be recognised. However, on November 24, 2019, a constitutional court mentioned social media user’s right to be forgotten in the cases of “revenge porn”. Justice S. K. Panigrahi of Orissa High Court, underscoring the need for a legal bulwark against the growing menace of revenge porn said that “no person, much less a woman, would want to create and display grey shades of her character. In most of the cases, like the present one, women are the victims. It is their rights to enforce the right to be forgotten as a right ‘in rem’.
Capturing images and videos with the consent of the woman cannot justify the misuse of such content once the relationship between the victim and the accused gets strained as it happened in the present case”, he further noted.
In 2016, a Delhi banker had asked to exercise his right to be forgotten aer details of his marital dispute, which was settled in court kept appearing online. The High Court had sought the response of the centre, Google and an online compendium. And in 2017, the Karnataka High Court upheld the right to be forgotten, in a case involving a woman who originally went to court to get a marriage certificate annulled. Aer the two parties agreed, the woman’s father wanted her…
Featured image from Penn Political Review