By Olumide Babalola
This brief article has little to do with the 2023 judgment delivered by the English High Court in the P & ID’s case freeing Nigeria from liability while exonerating Mr Shupo Shasore, SAN of corruption but everything to do with data protection – an emerging practice area that must continue to interest all (Nigerian) lawyers.
Earlier in 2017, an arbitral Tribunal had indicted Shasore of corruption and the Nigerian and international news media went to town with the story with many detrimental headlines based on the subsisting arbitral award which has just been set aside.
The Internet Never Forgets
On Sunday, the 5th day of November 2023, I did a quick search on Google and I found that, despite the new court decision nullifying the arbitral award as ‘obtained by fraud’, many of the old news reports as still lurking on the Internet.
To understand how reputationally prejudicial these old reports are, Shasore was the 15th Attorney General of Lagos State succeeding Prof. Yemi Osinbajo, SAN – Nigeria’s immediate past vice president. Most importantly, he is a Nigerian citizen who is entitled to his right to privacy, in this case, information privacy, the branch of privacy which regulates data protection.
Shasore’s Right to Be Forgotten
The damaging reports in so far as they identify or relate to Shasore, constitute his personal data, hence they are subject to the provision of the Nigeria Data Protection Act 2023. One of the rights guaranteed Shasore under the Act is the right to be forgotten. This right is also known as the right to erasure or deletion.
This right was effectively created by the Court of Justice of the European Union in the now-famous Google Spain’s case where one Mr Gonzalez demanded the erasure of news reports on the Internet search engine showing that he went through bankruptcy proceedings ten years earlier. In the final analyses, the court upheld the right to erasure while distinguishing the considerations when such requests concern private and public figures.
In Shasore’s case, notwithstanding the inelegant drafting and identification of data subjects’ rights under the NDPA, section 34(1)(c) guarantees the ‘deletion of the data subject’s personal data that is inaccurate, out of date, incomplete, or misleading.’ This provision entitles Shasore to demand the deletion and dereferencing of the initial indictment as it is not only outdated, it ceases to exist in law, hence it is no longer relevant and correct.
Conclusively, even though, the retention of such damaging reports on the Internet is a potential violation of Sashore’s right to be forgotten, the right must be invoked before a question on its violation can crystallize. In other words, even though the pendulum may swing to either side, as far as data protection is concerned, the ball is in the learned Silk’s court.