By Olumide Babalola
On Monday, the 6th day of December 2021, Samuel Ngwu – a lawyer and privacy professional informed me of a new decision that featured the data subject’s right to deletion (right to be forgotten) at the High Court of Lagos State.
I quickly reached out to Mr. Sadiku Ilegieuno, the lead counsel to one of the parties, to avail me a certified true copy of the judgement delivered in October 2021. The case was fought between Mr. Hillary Ogom Nwadei and Google & Anor in Suit No. IKD/319/GCM/2019.
In the suit, Mr. Nwadei – a cleric who was had been imprisoned for eight months in the United Kingdom for sexual assault sued google to compel them to remove and block all such news reports from the platform on ground that the continued publication of the story on Google interfered with his right to privacy etc.
On their part, Google responded that, while they could regulate access to certain links on their search engine, it could not edit the stories and stop the blogs from further publishing on their respective websites. After hearing the parties, the High Court of Lagos State dismissed the suit on the technical ground that Mr. Nwadei did not attach the offensive documents to his amended originating process.
Even though the decision does not particularly reflect an analysis of court-made right to be forgotten, Nigeria can now boast of a lawsuit predicated on this data subject’s right and it can form the basis of other similarly audacious claims under our data protection law jurisprudence.
First, nowhere in Nwadei’s reliefs, was the Nigeria Data Protection Regulation (NDPR) (under which the right to be forgotten can be conveniently invoked) referenced or invoked. It is worthy of note that the case was filed in January 2020 – almost a year after the NDPR was released, yet the Applicant never referenced the legislation nor relied on any of its provisions.
Although the second relief references ‘right to private life’, I have argued in my previous article that the body of Nigerian 1999 Constitution does not provide for right to private and family life. It only exists in the marginal notes which only serves a descriptive purpose. (See Olumide Babalola ‘Does the Nigerian Constitution expressly provide for a right to private and family life’? Re-interrogating the effect of the marginal note in section 37 of the Constitution of the Federal Republic of Nigeria 1999’ https://esq-law.com/does-the-nigerian-constitution-expressly-provide-for-a-right-to-private-and-family-life/
Secondly, as gleaned from the judgment, although Mr. Nwadei’s reliefs had the semblance of right to be forgotten, he did not explore the dynamics of the right in any material respect. In spite of Google’s admission that it could well de-reference such damaging stories, Mr. Nwadei was unable to show how his case fell under the categories of data subjects entitled to the exercise of right to be forgotten as devised in the famous Google Spain v AEPD case by the Court of Justice of the European Union since May 2014.
Throughout the entire judgment seven-paged judgment, nowhere is the right to deletion or right to be forgotten expressly mentioned, defined or even alleged. This omission, perhaps, accentuates the argument of a school of thought on the distinction between data protection and right to privacy stricto sensu. It is conceded that some data subject’s rights are better pursued on the stable of data protection as opposed to right to privacy. Right to deletion is undoubtedly one of such rights.
This case superficially offered the Nigerian judiciary an opportunity to pronounce on the right to deletion of personal data (right to be forgotten, right to de referencing, right to erasure) but same was lost on the ground of avoidable technicality as the decision is almost impotent as a precedent for or against the right to be forgotten in Nigeria.