data/processed/Nigeria_Data_Protection_Act_2023_text.txt

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Nigeria Data Protection Act, 2023 2022 No. 37 A 717
Extraordinary
Federal Republic of Nigeria
Official Gazette
No. 119 Lagos - 1st July, 2023 Vol. 110
Government Notice No. 82
The following is published as supplement to this Gazette :
Act No. Short Title Page
37 Nigeria Data Protection Act, 2023 .. .. .. .. .. .. A719-758
Printed and Published by The Federal Government Printer, Lagos, Nigeria
FGP 97/62023/1,200
Annual Subscription from 1st January, 2023 is Local : N50,000.00 Overseas : N65,000.00 [Surface Mail]
N80,000.00 [Second Class Air Mail]. Present issue N3,500 per copy. Subscribers who wish to obtain Gazette
after 1st January should apply to the Federal Government Printer, Lagos for amended Subscriptions.
[TABLES]
[[''], ['Extraordinary']]

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A 718 2023 No. 37 Nigeria Data Protection Act, 2023
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Nigeria Data Protection Act, 2023 2022 No. 37 A 719
NIGERIA DATA PROTECTION ACT, 2023
\
ARRANGEMENT OF SECTIONS
Section :
PART I—OBJECTIVES AND APPLICATION
1. Objectives
2. Application
3. Exemption of application
PART II — ESTABLISHMENT OF THE NIGERIA DATA PROTECTION COMMISSION,
AND ITS GOVERNING COUNCIL
4. Establishment of the Nigeria Data Protection Commission
5. Functions of the Commission
6. Powers of the Commission
7. Independence of the Commission
8. Establishment of the Governing Council of the Commission
9. Appointment of members of the Council
10. Tenure of members of the Council
11. Cessation of membership
12. Functions and powers of the Council
13. Conflict of interest
PART III — APPOINTMENT OF THE NATIONAL COMMISSIONER, AND OTHER
STAFF OF THE COMMISSION
14. Appointment of the National Commissioner for the Commission
15. Secretary to the Council
16. Staff of the Commission
17. Staff regulations and discipline
18. Pension
PART IV — FINANCIAL PROVISIONS
19. Funds of the Commission
20. Expenditure of the Fund
21. Power to borrow and accept gifts
22. Account and audit
23. Annual reports and estimates
[TABLES]
[['', None, None], ['Nigeria Data Protection Act, 2023 2022 No. 37', '', None], ['NIGERIA DATA PROTECTION ACT, 2023', '', ''], ['', None, None]]

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A 720 2023 No. 37 Nigeria Data Protection Act, 2023
PART V — PRINCIPLES AND LAWFUL BASIS GOVERNING PROCESSING
OF PERSONAL DATA
24. Principles of personal data processing
25. Lawful basis of personal data processing
26. Consent
27. Provision of information to the data subject
28. Data privacy impact assessment
29. Obligations of the data controller and data processor
30. Sensitive personal data
31. Children or persons lacking the legal capacity to consent
32. Data Protection Officers
33. Data protection compliance services
PART VI — RIGHTS OF A DATA SUBJECT
34. Rights of a data subject
35. Withdrawal of consent
36. Right to object
37. Automated decision making
38. Data portability
PART VII — DATA SECURITY
39. Security, integrity, and confidentiality
40. Personal data breaches
PART VIII — CROSS-BORDER TRANSFERS OF PERSONAL DATA
41. Basis for cross-border transfer of personal data
42. Adequacy of protection
43. Other bases for transfer of personal data outside Nigeria
PART IX — REGISTRATION AND FEES
44. Registration of data controllers and data processors of major importance
45. Fees and levies
PART X — ENFORCEMENT
46. Complaints and investigations
47. Compliance orders
48. Enforcement orders
49. Offences and penalties
50. Judicial review
51. Civil remedies
52. Forfeiture
53. Joint and vicarious liability
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Nigeria Data Protection Act, 2023 2022 No. 37 A 721
PART XI — LEGAL PROCEEDINGS
54. Limitation of suits against the Commission
55. Service of documents
56. Restriction on execution against property of the Commission
57. Indemnity of staff, members, and employees of the Commission
58. Power of arrest, search, and seizure
59. Right to appear in court
PART XII — MISCELLANEOUS PROVISIONS
60. Directives by the Minister
61. Regulations
62. Directives, codes, and guidelines
63. Priority of the Act
64. Transitional provisions
65. Interpretation
66. Citation
SCHEDULE
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A 722 2023 No. 37 Nigeria Data Protection Act, 2023
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Nigeria Data Protection Act, 2023 2022 No. 37 A 723
NIGERIA DATA PROTECTION ACT, 2023
ACT No. 37
AN ACT TO PROVIDE A LEGAL FRAMEWORK FOR THE PROTECTION OF PERSONAL
INFORMATION, AND ESTABLISH THE NIGERIA DATA PROTECTION COMMISSION FOR THE
REGULATION OF THE PROCESSING OF PERSONAL INFORMATION ;
AND FOR RELATED MATTERS
[12th Day of June, 2023] Commence-
ment.
ENACTED by the National Assembly of the Federal Republic of Nigeria—
PART I—OBJECTIVES AND APPLICATION
1.—(1) The objectives of this Act are to — Objectives
(a) safeguard the fundamental rights and freedoms, and the interests of
data subjects, as guaranteed under the Constitution of the Federal Republic
of Nigeria, 1999 ;
(b) provide for the regulation of processing of personal data ;
(c) promote data processing practices that safeguard the security of
personal data and privacy of data subjects ;
(d) ensure that personal data is processed in a fair, lawful and accountable
manner ;
(e) protect data subjects’ rights, and provide means of recourse and
remedies, in the event of the breach of the data subject’s rights ;
(f ) ensure that data controllers and data processors fulfil their obligations
to data subjects ;
(g) establish an impartial, independent, and effective regulatory
Commission to superintend over data protection and privacy issues, and
supervise data controllers and data processors ; and
(h) strengthen the legal foundations of the national digital economy and
guarantee the participation of Nigeria in the regional and global economies
through the beneficial and trusted use of personal data.
2.—(1) This Act shall apply to the processing of personal data, whether Application
by automated means or not.
(2) This Act shall apply, where the —
(a) data controller or data processor is domiciled in, resident in, or
operating in Nigeria ;
(b) processing of personal data occurs within Nigeria ; or
(c) the data controller or the data processor is not domiciled in, resident
in, or operating in Nigeria, but is processing personal data of a data subject
in Nigeria.
[TABLES]
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A 724 2023 No. 37 Nigeria Data Protection Act, 2023
Exemption 3.—(1) This Act shall not apply to the processing of personal data
of carried out by one or more persons solely for personal or household purposes:
application
Provided that such processing for personal or household purposes does not
constitute a violation of fundamental right to privacy of a data subject.
(2) Subject to the rights and freedoms under the Constitution and the
limitations, the obligations under Part V, other than sections 24, 25, 32, and 40
of this Act, shall not apply to a data controller or data processor if the processing
of personal data is —
(a) carried out by a competent authority for the purposes of the
prevention, investigation, detection, prosecution, or adjudication of a criminal
offence or the execution of a criminal penalty, in accordance with any
applicable law ;
(b) carried out by a competent authority for the purposes of prevention
or control of a national public health emergency ;
(c) carried out by a competent authority, as is necessary for national
security ;
(d) in respect of publication in the public interest, for journalism,
educational, artistic and literary purposes to the extent that such obligations
and rights are incompatible with such purposes ; or
(e) necessary for the establishment, exercise, or defense of legal claims,
whether in court proceedings, or in an administrative or out-of-court
procedure.
(3) The Commission may by regulation prescribe types of personal data
and processing that may be exempted from application of this Act.
(4) Notwithstanding the provisions of this Act, the Commission may
issue a guidance notice containing legal safeguards and best practices to a
data controller or processor, in respect of any aspect of data processing
exempted under this section where in the opinion of the Commission, such
processing violates or is likely to violate sections 24 and 25 of this Act.
PART II — ESTABLISHMENT OF THE NIGERIA DATA PROTECTION
COMMISSION, AND ITS GOVERNING COUNCIL
Establishment 4.—(1) There is established the Nigeria Data Protection Commission
of the (in this Act, referred to as “the Commission”).
Nigeria Data
Protection (2) The Commission —
Commission
(a) shall be a body corporate, with perpetual succession and a
common seal ;
(b) may sue or be sued in its corporate name ; and
(c) may acquire, hold and dispose of its property.
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Nigeria Data Protection Act, 2023 2022 No. 37 A 725
(3) The Commission —
(a) shall have its head office in the Federal Capital Territory ; and
(b) may maintain other offices, in any part of Nigeria, for the purposes
of achieving the objects of the Commission.
(4) Subject to the approval of the Council, the National Commissioner
may acquire other offices and premises for the use of the Commission.
5. The Commission shall — Functions of
the
(a) regulate the deployment of technological and organisational measures
Commission
to enhance personal data protection ;
(b) foster the development of personal data protection technologies, in
accordance with recognised international best practices and applicable
international law ;
(c) where necessary, accredit, license, and register suitable persons to
provide data protection compliance services ;
(d) register data controllers and data processors of major importance ;
(e) promote awareness on the obligation of data controllers and data
processors under this Act ;
(f ) promote public awareness and understanding of personal data
protection, rights and obligations imposed under this Act, and the risks to
personal data ;
(g) receive complaints relating to violations of this Act or subsidiary
legislation made under this Act ;
(h) collaborate with any relevant ministry, department, agency, body,
company, firm, or person for the attainment of the objectives of this Act ;
(i) ensure compliance with national and international personal data
protection obligations and best practice ;
(j) participate in international fora and engage with national and regional
authorities responsible for data protection with a view to developing efficient
strategies for the regulation of cross-border transfers of personal data ;
(k) determine whether countries, regions, business sectors, binding
corporate rules, contractual clauses, codes of conduct, or certification
mechanisms, afford adequate personal data protection standards for cross-
border transfers ;
(l) collect and publish information with respect to personal data
protection, including personal data breaches ;
(m) advise government on policy issues relating to data protection and
privacy ;
(n) submit legislative proposals to the Minister necessary for strengthening
personal data protection in Nigeria ; and
(o) carry out other legal actions as are necessary for the performance
of the functions of the Commission.
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A 726 2023 No. 37 Nigeria Data Protection Act, 2023
Powers of 6. The Commission shall have powers to —
the
(a) oversee the implementation of the provisions of this Act ;
Commission
(b) prescribe fees payable by data controllers and data processors in
accordance with data processing activities ;
(c) issue regulations, rules, directives and guidance under this Act ;
(d) prescribe the manner and frequency of filing, and content of
compliance returns by data controllers and data processors of major
importance to the Commission ;
(e) call for information from a person, or inspect any documents with
respect to any thing done under this Act ;
(f ) conduct investigations into any violation of a requirement under this
Act or subsidiary legislation made under this Act by a data controller or a
data processor ;
(g) impose penalties in respect of any violation of the provisions of this
Act or subsidiary legislation made under this Act ;
(h) acquire assets, and sell, let, lease, or dispose of any of its property ; and
(i) perform such other acts as are necessary to give effect to the functions
of the Commission.
Independence 7. The Commission shall be independent in the performance of its
of the functions under this Act.
Commission
Establishment 8.—(1) There shall be for the Commission, a Governing Council (in this
of the Act referred to as “the Council”), which shall consist of —
Governing
Council of (a) a part-time Chairman, who shall be a retired judge of Nigeria ;
the (b) the National Commissioner ;
Commission (c) a representative, not below the rank of a Director or its equivalent,
from —
(i) the Federal Ministry responsible for Justice,
(ii) the Federal Ministry responsible for communications and digital
economy,
(iii) the Central Bank of Nigeria, and
(iv) a law enforcement agency ; and
(d) one representative from the private sector.
(2) Members of the Council other than the National Commissioner shall
be paid such allowances as may be determined, in collaboration with the
Revenue Mobilisation Allocation and Fiscal Commission.
Schedule (3) The supplementary provisions set out in the Schedule to this Act
shall apply with respect to the proceedings of the Council, and other matters
contained in it.
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Nigeria Data Protection Act, 2023 2022 No. 37 A 727
9.—(1) The Chairman and non-ex-officio members of the Council shall Appointment
be appointed by the President, on the recommendation of the Minister. of members
of the
(2) A member appointed to the Council under section 8 of this Act Council
from—
(a) the private sector shall be a Nigerian and possess not less than five
years cognate experience and proficiency in data protection and privacy;
and
(b) government, under section 8(1)(c) of this Act, may have proficiency
in data protection and privacy.
10.—(1) Members of the Council other than the National Commissioner Tenure of
shall be part-time members. members of
the Council
(2) The Chairman and non-ex-officio members of the Council shall hold
office —
(a) for a term of four years, and may be eligible for re-appointment for
another term of four years, and no more ; and
(b) on such terms and conditions, as may be specified in their letters of
appointment.
11.—(1) A person shall cease to be a member of the Council, where the Cessation of
person — membership
(a) dies ;
(b) becomes bankrupt or compounds with his creditors ;
(c) is convicted of a felony or any offence involving dishonesty or fraud ;
(d) is disqualified from professional qualification ;
(e) is guilty of a serious misconduct with regard to the discharge of the
person’s duties ;
(f ) under section 8(1)(c) of this Act, ceases to occupy the office by
virtue of which he became a member of the Council ; or
(g) resigns from appointment by giving at least two months’ notice, in
writing, addressed to the President.
(2) The President, on the recommendation of the Minister, may remove
a member of the Council, where satisfied that it is not in the interest of the
Commission or the public that the member continues in that office.
(3) Where a member of the Council ceases to hold office before the
expiration of the term, the President shall appoint a person to fill the vacancy,
and the person so appointed shall hold office for the remainder of the term of
office of that member.
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A 728 2023 No. 37 Nigeria Data Protection Act, 2023
Functions 12.—(1) The functions of the Council are to —
and powers
(a) formulate and provide overall policy direction of the affairs of the
of the
Council Commission ;
(b) approve strategic plans, action plans and budget support programmes
submitted by the National Commissioner ;
(c) approve annual reports and financial reports submitted by the National
Commissioner ;
(d) approve the terms and conditions of service of the employees of the
Act No. 4, Commission, including remuneration, allowances and pension benefits in
2014 accordance with the Pension Reform Act ;
(e) approve staff regulations for the appointment, promotion and discipline
of staff of the Commission ;
(f ) provide advice and counsel to the National Commissioner;
(g) assist the National Commissioner in matters relating to compliance
by ministries, departments and agencies of government with this Act ; and
(h) handle such other matters, as may be prescribed by any other
provision of this Act.
(2) The Council shall have the power to delegate any of its functions
under this Act to a committee set up by it, in accordance with the provisions of
this Act.
Conflict of 13.—(1) A member of the Council shall —
interest
(a) ensure that personal interest shall not conflict with the member’s
duties under this Act ;
(b) not make secret profit in the course of discharging official duties ;
(c) fully disclose to the Council any personal, commercial, financial, or
other interest, which may directly or indirectly hold or be connected with
the business of the Commission or becomes the subject of consideration by
the Council ;
(d) subject to subsection (3), be ineligible to participate in any Council
deliberation and voting-related matter ; and
(e) not accept any gift or advantage in whatever form or manner, for
anything done or likely to be done with respect to the responsibilities of the
Council.
(2) A member of the Council, who contravenes the provisions of
paragraphs (b) and (e), commits an offence and is liable on conviction to —
(a) in the case of a contravention of paragraph (b), a fine of at
least N10,000,000 or imprisonment for a term not more than three
years, or both ; or
(b) in the case of a contravention of paragraph (d), a fine of at least
N5,000,000, or imprisonment for a term not more than two years, or both.
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Nigeria Data Protection Act, 2023 2022 No. 37 A 729
PART III — APPOINTMENT OF THE NATIONAL COMMISSIONER, AND OTHER
STAFF OF THE COMMISSION
14.—(1) There shall be for the Commission, a National Commissioner, Appointment
who shall be — of the
National
(a) appointed by the President, on the recommendation of the Minister ; Commissioner
(b) the chief executive and accounting officer of the Commission; and for the
Commission
(c) responsible for the execution of the policies and administration of
the affairs of the Commission.
(2) The National Commissioner shall —
(a) hold a certification in data protection from a training body which is
duly accredited in line with international best practices ; and
(b) possess at least 10 years cognate experience, at a senior management
level, in data protection, cybersecurity management, information and
communication technology, law, consumer protection, management science,
or other relevant disciplines.
(3) A person appointed as the National Commissioner shall not hold any
other management position in a Ministry, Department, or Agency of
Government, corporation, company, or any other business establishment.
(4) The National Commissioner shall hold office —
(a) for a term of five years, and may be re-appointed for another term
of five years, and no more ; and
(b) on such other terms and conditions as may be specified in the letter
of appointment.
15. The National Commissioner shall be the Secretary to the Council, Secretary to
and — the Council
(a) be responsible to the Council;
(b) keep the Council’s records;
(c) conduct the Council’s correspondence ; and
(d) discharge such other duties, as the Council may determine.
16. The Commission shall, subject to the approval of the Council, recruit Staff of the
directly or by secondment from the Public Service of the Federation, such Commission
number of staff, as it deems necessary and expedient —
(a) for the proper and efficient performance of its functions ; and
(b) on such terms and conditions, with remunerations, allowances, and
benefits.
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A 730 2023 No. 37 Nigeria Data Protection Act, 2023
Staff 17.—(1) The Commission may make staff regulations relating
regulations generally to the conditions of service of the staff, and such regulations
and
may provide for —
discipline
(a) the appointment, promotion, and disciplinary control of staff of the
Commission ; and
(b) appeals by staff against dismissal or other disciplinary measures :
Provided that pending the making of such staff regulations, any instrument
relating to conditions of service in the Public Service of the Federation shall
be applicable, with such modifications, as may be necessary to the staff of the
Commission.
(2) The staff regulations made under subsection (1) shall not have effect
until approved by the Council.
Pension 18.—(1) Staff of the Commission shall be entitled to pension and other
retirement benefits, as prescribed under the Pension Reform Act.
Act No. 4,
2014 (2) Without prejudice to the provisions of subsection (1), nothing in this
Act shall prevent the appointment of a person to any office on conditions,
which preclude the grant of pension and other retirement benefits in respect
of that office.
(3) For the application of the provisions of the Pension Reform Act, any
power exercisable by a Minister or other authority of the Federal Government,
other than the power to make regulations under the Pension Reform Act, shall
be vested in, and exercisable by the Council.
PART IV — FINANCIAL PROVISIONS
Fund of the 19.—(1) The Commission shall establish a Fund (in this Act referred to
Commission as “the Fund”) for the performance of its functions under this Act.
(2) There shall be paid into the Fund established under subsection (1) —
(a) a take-off grant as may be appropriated by the National Assembly
which shall be drawn in the following manner —
(i) 20% of the take-off grant shall be from the Consolidated Revenue
Fund of the Federation,
(ii) 40% of the take-off grant shall be from the Nigerian
Communications Commission, and
(iii) 40% of the take-off grant shall be from the National Information
Technology Development Agency ;
(b) donations, gifts, loans, grants, aids, endowments, and voluntary
contributions ;
(c) returns on investments of the Commission ;
(d) levies, fees, penalties, and fines collected by the Commission ; and
(e) such other money or assets that may accrue to the Commission.
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Nigeria Data Protection Act, 2023 2022 No. 37 A 731
(3) 50% of the total amount of the take-off grant shall be provided to the
Commission on the commencement of this Act, and the remaining 50% of the
take-off grant shall be provided on the anniversary of the date on which this
Act commences.
(4) Subject to any applicable law, the Commission may borrow such
sums of money, as may be required in the performance of its functions under
to this Act.
20.—(1) There shall be chargeable to the Fund — Expenditure
of the Fund
(a) the cost of administration of the Commission ;
(b) allowances and remuneration payable to members of the Council ;
(c) remunerations, allowances, retiring benefits, such as pensions and
gratuities, and such other money payable to the staff of the Commission ;
(d) the payment for consultancies and contracts, including mobilisation,
fluctuations, variations, and legal fees ;
(e) expenses necessary to meet capital expenditure, such as, for the
purchase, acquisition, or maintenance of property or other equipment of the
Commission ;
(f ) repayment of funds borrowed by the Commission, including interest
on such borrowed funds ; and
(g) any other expenditure, approved by the Council, for the purposes of
performing the functions of the Commission under this Act.
(2) The Fund of the Commission shall be managed in accordance with
the rules made by the Council.
21.—(1) Subject to any applicable law, the Commission may borrow Power to
such sums of money, as may be required in the performance of the functions borrow and
accept gifts
of the Commission under this Act.
(2) The Commission may accept gifts, grants of money, aids, or other
assets, provided that the terms and conditions of the acceptance are consistent
with the objectives and functions of the Commission under this Act.
22.—(1) The Commission shall keep and maintain proper accounts and Account
records, including records of — and audit
(a) receipts, payments, assets, and liabilities ; and
(b) income and expenditure, in a form which conforms with existing
laws on accounts and audit.
(2) The Commission shall cause the accounts to be audited, not later
than six months after the end of each year, by auditors appointed from the list
maintained by the Auditor-General for the Federation, and in accordance with
the guidelines provided by the Auditor-General for the Federation.
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A 732 2023 No. 37 Nigeria Data Protection Act, 2023
(3) An auditor appointed under subsection (2) shall have full and free
access to all account records, documents, and papers of the Commission.
(4) For the purpose of this section, the financial year of the Commission
shall be from 1 January to 31 December of every year, or such other period,
as may be determined by the Council.
Annual 23.—(1) The Commission shall, not later than six months after the end of
reports and each financial year, submit to the National Assembly through the Minister —
estimates
(a) a report of its activities during the preceding year, including the
audited accounts of the Commission ; and
(b) an estimate of the expenditure and income for the next succeeding
year.
(2) Notwithstanding the provisions of subsection (1), the Commission
may, in any financial year, submit supplementary or adjusted statements of
estimated income and expenditure to the National Assembly.
PART V — PRINCIPLES AND LAWFUL BASIS GOVERNING
PROCESSING OF PERSONAL DATA
Principles of 24.—(1) A data controller or data processor shall ensure that personal
personal data is —
data
(a) processed in a fair, lawful and transparent manner ;
processing
(b) collected for specified, explicit, and legitimate purposes, and not to
be further processed in a way incompatible with these purposes ;
(c) adequate, relevant, and limited to the minimum necessary for the
purposes for which the personal data was collected or further processed ;
(d) retained for not longer than is necessary to achieve the lawful bases
for which the personal data was collected or further processed ;
(e) accurate, complete, not misleading, and, where necessary, kept up
to date having regard to the purposes for which the personal data is collected
or is further processed ; and
(f ) processed in a manner that ensures appropriate security of personal
data, including protection against unauthorised or unlawful processing,
access, loss, destruction, damage, or any form of data breach.
(2) A data controller and data processor shall use appropriate technical
and organisational measures to ensure confidentiality, integrity, and availability
of personal data.
(3) Notwithstanding anything to the contrary in this Act or any other
law, a data controller or data processor owes a duty of care, in respect of data
processing, and shall demonstrate accountability, in respect of the principles
contained in this Act.
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Nigeria Data Protection Act, 2023 2022 No. 37 A 733
(4) For the purposes of subsection (1) (b) —
(a) compatibility of further processing shall be assessed considering —
(i) the relationship between the original purpose and the purpose of
the intended further processing,
(ii) the nature of the personal data concerned,
(iii) the consequences of further processing,
(iv) how the personal data has been collected, and
(v) the existence of appropriate safeguards ; and
(b) further processing for archiving purposes in the public interest,
scientific, historical research purposes, or statistical purposes shall not be
considered to be incompatible with the initial purposes.
25.—(1) Without prejudice to the principles set out in this Act, data Lawful basis
processing shall be lawful, where — of personal
data
(a) the data subject has given and not withdrawn consent for the specific
processing
purpose or purposes for which personal data is to be processed ; or
(b) the processing is necessary —
(i) for the performance of a contract to which the data subject is a
party or to take steps at the request of the data subject prior to entering
into a contract,
(ii) for compliance with a legal obligation to which the data controller
or data processor is subject,
(iii) to protect the vital interest of the data subject or another person,
(iv) for the performance of a task carried out in the public interest or
in the exercise of official authority vested in the data controller or data
processor, or
(v) for the purposes of the legitimate interests pursued by the data
controller or data processor, or by a third party to whom the data is
disclosed.
(2) Interests in personal data processing shall not be legitimate for the
purposes of subsection (1)(b)(v), where —
(a) they override the fundamental rights, freedoms and the interests of
the data subject ;
(b) they are incompatible with other lawful basis of processing under
subsection (1)(b) (i)-(iv) ; or
(c) the data subject would not have a reasonable expectation that the
personal data would be processed in the manner envisaged.
26.—(1) A data controller shall bear the burden of proof for establishing Consent
a data subject’s consent.
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A 734 2023 No. 37 Nigeria Data Protection Act, 2023
(2) In determining whether consent was freely and intentionally given,
account shall be taken of whether, the performance of a contract, including
the provision of a service, is conditional on consent to the processing of personal
data that is not necessary for the performance of that contract.
(3) Silence or inactivity of the data subject shall not constitute consent.
(4) Where the processing of personal data is based on the consent of
the data subject, the data subject shall be informed of the right to withdraw
consent, prior to the granting of consent.
(5) The withdrawal of consent under subsection (4) shall not affect the
lawfulness of data processing that occurred before the withdrawal of the
consent.
(6) A request for consent shall be in clear and simple language and
accessible format.
(7) Consent —
(a) shall be in the affirmative, and not based on a pre-selected
confirmation ; and
(b) may be provided in writing, orally, or through electronic means.
Provision of 27.—(1) Before a data controller collects personal data directly from a
information data subject, the data controller shall inform the data subject of the —
to the data
subject (a) identity, residence or place of business of, and means of
communication with the data controller and its representatives, where
necessary ;
(b) specific lawful basis of processing under section 25(1) or 30(1) of
this Act, and the purposes of the processing for which the personal data are
intended ;
(c) recipients or categories of recipients of the personal data, if any ;
(d) existence of the rights of the data subject under Part VI ;
(e) retention period for the personal data ;
(f ) right to lodge a complaint with the Commission in accordance with
section 46 (1) of this Act ; and
(g) existence of automated decision-making, including profiling, the
significance and envisaged consequences of such processing for the data
subject, and the right to object to and challenge such processing.
(2) Before a data controller collects personal data, other than directly
from the data subject, the data controller shall inform the data subject of the
matters set out in subsection (1), except where the —
(a) data subject already has been provided with such information ; or
(b) provision of such information is impossible or would involve a
disproportionate effort or expense.
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Nigeria Data Protection Act, 2023 2022 No. 37 A 735
(3) The information referred to in subsection (1) shall be contained in a
privacy policy and expressed in clear, concise, transparent, intelligible, and
easily accessible format, taking into consideration the class of data subjects
targeted by the data processing.
28.—(1) Where the processing of personal data may likely result in Data privacy
high risk to the rights and freedoms of a data subject by virtue of its nature, impact
assessment.
scope, context, and purposes, a data controller shall, prior to the processing,
carry out a data privacy impact assessment.
(2) The data controller shall consult the Commission prior to the processing
if, notwithstanding the measures envisaged under this section, the data
protection impact assessment indicates that the processing of the data would
result in a high risk to the rights and freedoms of a data subject.
(3) The Commission may make regulations or issue directives with
regards to this section, including the categories of processing and persons
subject to the requirement for the conduct of a data privacy impact assessment.
(4) For purposes of this section, a “data privacy impact assessment” is
a process designed to identify the risks and impact of the envisaged processing
of personal data, and it comprises —
(a) a systematic description of the envisaged processing and its purpose,
including the legitimate interest pursued by the data controller, data processor,
or third party ;
(b) an assessment of the necessity and proportionality of the processing
in relation to the purposes for which the personal data would be processed ;
(c) an assessment of the risks to the rights and freedoms of a data
subject ; and
(d) the measures envisaged to address the risks, safeguards, security
measures and mechanisms to ensure the protection of personal data, taking
into account the rights and legitimate interests of a data subject and other
persons concerned.
29.—(1) Where a data controller engages the services of a data Obligations
processor, or a data processor engages the services of another data processor, of the data
controller
the data controller or data processor engaging another shall ensure that the
and data
engaged data processor —
processor
(a) complies with the principles and obligations set out in this Act as
applicable to the data controller ;
(b) assists the data controller or data processor, as the case may be, by
the use of appropriate technical and organisational measures, in the fulfilment
of the data controller’s obligations to honour the rights of a data subject
under Part VI ;
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A 736 2023 No. 37 Nigeria Data Protection Act, 2023
(c) implements appropriate technical and organisational measures to
ensure the security, integrity, and confidentiality of personal data as required
in Part VII ;
(d) provides the data controller or engaging data processor, where
applicable, with information reasonably required to comply and demonstrate
compliance with this Act ; and
(e) notifies the data controller or engaging data processor, where
applicable, when a new data processor is engaged.
(2) The measures under subsection (1) include a written agreement
between the data controllers and the data processor, or between data
processors, as the case may be.
Sensitive 30.—(1) Without prejudice to the principles set out in this Act, a data
personal controller or data processor shall not process, or permit a data processor to
data
process on its behalf, sensitive personal data, unless the —
(a) data subject has given and not withdrawn consent to the processing
for the specific purpose or purposes for which it will be processed ;
(b) processing is necessary for the purposes of performing the
obligations of the data controller or exercising rights of the data subject
under employment or social security laws or any other similar laws ;
(c) processing is necessary to protect the vital interests of the data
subject or of another person, where the data subject is physically or legally
incapable of giving consent ;
(d) processing is carried out in the course of its legitimate activities,
with appropriate safeguards, by a foundation, association, or such other
non-profit organisation with charitable, educational, literary, artistic,
philosophical, religious, or trade union purposes, and the —
(i) processing relates solely to the members or former members of
the entity, or to persons, who have regular contact with it in connection
with its purposes, and
(ii) sensitive personal data is not disclosed outside of the entity without
the explicit consent of the data subject ;
(e) processing is necessary for the establishment, exercise, or defense
of a legal claim, obtaining legal advice, or conduct of a legal proceeding ;
(f ) processing is necessary for reasons of substantial public interest, on
the basis of a law, which shall be proportionate to the aim pursued, and
provides for suitable and specific measures to safeguard the fundamental
rights, freedoms and interests of the data subject ;
(g) processing is carried out for purposes of medical care or community
welfare, and undertaken by or under the responsibility of a professional or
similar service provider owing a duty of confidentiality ;
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Nigeria Data Protection Act, 2023 2022 No. 37 A 737
(h) processing is necessary for reasons of public health and provides
for suitable and specific measures to safeguard the fundamental rights,
freedoms and interests of the data subject ; or
(i) processing is necessary for archiving purposes in the public interest,
or historical, statistical, or scientific research, in each case on the basis of a
law, which shall be proportionate to the aim pursued, and provides for suitable
and specific measures to safeguard the fundamental rights and freedoms
and the interests of the data subject.
(2) The Commission may make regulations or issue directives
prescribing —
(a) further categories of personal data that may be classified as sensitive
personal data ;
(b) further grounds on which such personal data may be processed ; and
(c) safeguards that may apply.
(3) The Commission shall, in making regulations or issuing directives
under subsection (2), have regard to the —
(a) risk of significant harm that may be caused to a data subject or a class
of data subjects by the processing of such category of personal data ;
(b) reasonable expectation of confidentiality attached to such category
of personal data ; and
(c) adequacy of protection afforded to personal data generally.
31.—(1) Where a data subject is a child or a person lacking the legal Children or
capacity to consent, a data controller shall obtain the consent of the parent or persons
legal guardian, as applicable, to rely on consent under this Act. lacking the
legal
(2) A data controller shall apply appropriate mechanisms to verify age capacity to
and consent, taking into consideration available technology. consent
(3) For the purposes of subsection (2), presentation of any government
approved identification documents shall be an appropriate mechanism.
(4) subsection (1) shall not apply, where the processing is —
(a) necessary to protect the vital interests of the child or person lacking
the legal capacity to consent ;
(b) carried out for purposes of education, medical, or social care, and
undertaken by or under the responsibility of a professional or similar service
provider owing a duty of confidentiality ; or
(c) necessary for proceedings before a court relating to the individual.
(5) Where the circumstance relates to the processing of personal data
of a child of 13 years and above in relation to the provision of information and
services by electronic means at the specific request of the child, the Commission
shall make regulations in accordance with the objectives of this Act.
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A 738 2023 No. 37 Nigeria Data Protection Act, 2023
Act No. 26, (6) Nothing in this Act shall be construed as authorising data processing
2003 in respect of a child in a manner that is inconsistent with the provisions of the
Child’s Right Act.
Data 32.—(1) A data controller of major importance shall designate a Data
Protection Protection Officer with expert knowledge of data protection law and practices,
Officers
and the ability to carry out the tasks prescribed under this Act and subsidiary
legislation made under it.
(2) The Data Protection Officer may be an employee of a data controller
or engaged by a service contract.
(3) The Data Protection Officer shall —
(a) advise the data controller or the data processor, and their employees,
who carry out processing made under this Act ;
(b) monitor compliance with this Act and related policies of the data
controller or data processor ; and
(c) act as the contact point for the Commission on issues relating to data
processing.
Data 33. The Commission may license a person having a requisite level of
protection expertise, in relation to data protection and this Act, to monitor, audit and
compliance report on compliance by data controllers and data processors with —
services
(a) this Act ; and
(b) regulations, guidelines, directives, and codes of conduct issued by
the Commission made under the provisions of this Act.
PART VI — RIGHTS OF A DATA SUBJECT
Rights of a 34.—(1) A data subject has the right to obtain from a data controller,
data subject without constraint or unreasonable delay —
(a) confirmation as to whether the data controller or a data processor
operating on its behalf, is storing or otherwise processing personal data
relating to the data subject, and where that is the case —
(i)the purposes of the processing,
(ii) the categories of personal data concerned,
(iii) the recipients or categories of recipient to whom the personal data
have been or will be disclosed, particularly recipients in third countries or
international organisations,
(iv) where possible, the period for which the personal data will be stored,
or, if not possible, the criteria used to determine that period,
(v) the existence of the right to request from the data controller
rectification or erasure of personal data, or restriction of processing of
personal data concerning the data subject or to object to such processing,
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Nigeria Data Protection Act, 2023 2022 No. 37 A 739
(vi) the right to lodge a complaint with the Commission,
(vii) where the personal data is not collected from the data subject, any
available information as to their source, and
(viii) the existence of automated decision-making, including profiling,
the significance and envisaged consequences for the data subject ;
(b) a copy of data subject’s personal data in a commonly used electronic
format, except to the extent that providing such data would impose
unreasonable costs on the data controller, in which case the data subject
may be required by the data controller to bear some or all of such costs ;
(c) the correction or, if correction is not feasible or suitable, deletion of
the data subject’s personal data that is inaccurate, out of date, incomplete,
or misleading ;
(d) the erasure of personal data concerning the data subject, without
undue delay ; and
(e) restriction of data processing pending —
(i) the resolution of a request,
(ii) objection by the data subject under this Act, or
(iii) the establishment, exercise, or defense of legal claims.
(2) A data controller shall erase personal data without undue delay,
where —
(a) the personal data is no longer necessary, in relation to the purposes
for which it was collected or processed, or
(b) the data controller has no other lawful basis to retain the personal
data.
35.—(1) A data subject shall have the right to withdraw, at any time, Withdrawal
consent to the processing of personal data under this Act. of consent
(2) The data controller shall ensure that it is as easy for the data subject
to withdraw, as to give consent.
36.—(1) A data subject shall have the right to object to the processing Right to
of personal data relating to the data subject. object
(2) A data controller shall discontinue the processing of personal data,
unless the data controller demonstrates a public interest or other legitimate
grounds, which overrides the fundamental rights and freedoms, and the interests
of the data subject.
(3) Where personal data is processed for direct marketing purposes, the
data subject shall have the right to object, at any time, to the processing of
personal data concerning the data subject, which includes profiling to the extent
that it is related to such direct marketing.
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A 740 2023 No. 37 Nigeria Data Protection Act, 2023
(4) Where the data subject objects to processing for direct marketing
purposes, the personal data shall no longer be processed for such purposes.
Automated 37.—(1) A data subject shall have the right not to be subject to a decision
decision based solely on automated processing of personal data, including profiling,
making
which produces legal or similar significant effects concerning the data subject.
(2) Subsection (1) shall not apply, where the decision is —
(a) necessary for entering into or the performance of a contract between
the data subject and a data controller ;
(b) authorised by a written law, which establishes suitable measures to
safeguard the fundamental rights and freedoms, and the interests of the
data subject ; or
(c) authorised by the consent of the data subject.
(3) The data controller shall implement suitable measures to safeguard
the data subject’s fundamental rights, freedoms and interests, including the
rights to —
(a) obtain human intervention on the part of the data controller ;
(b) express the data subject’s point of view ; and
(c) contest the decision.
Data 38.—(1) The Commission may make regulations establishing a right of
portability personal data portability.
(2) Right of data portability under this Act shall entitle the data
subject to —
(a) receive, without undue delay from a data controller, personal data
concerning the data subject in a structured, commonly used, and machine-
readable format ;
(b) transmit the personal data obtained under paragraph (a) to another
data controller without any hindrance ; and
(c) where technically possible, have the personal data transmitted directly
from one data controller to another.
(3) The Commission may prescribe —
(a) circumstances and conditions on which the data subject may exercise
the right of data portability ; and
(b) the obligations it would impose on a data controller or data processor,
or categories of data controllers or data processors, including in relation to
costs and timing.
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Nigeria Data Protection Act, 2023 2022 No. 37 A 741
PART VII — DATA SECURITY
39.—(1) A data controller and data processor shall implement appropriate
Security,
technical and organisational measures to ensure the security, integrity and
integrity,
confidentiality of personal data in its possession or under its control, including
a n d
protections against accidental or unlawful destruction, loss, misuse, alteration,
confidentiality
unauthorised disclosure, or access, taking into account —
(a) the amount and sensitivity of the personal data ;
(b) the nature, degree and likelihood of harm to a data subject that could
result from the loss, disclosure, or other misuse of the personal data ;
(c) the extent of the processing ;
(d) the period of data retention ; and
(e) the availability and cost of any technologies, tools, or other measures
to be implemented relative to the size of the data controller or data processor.
(2) Measures implemented under subsection (1) may include —
(a) pseudonymisation or other methods of de-identification of personal
data ;
(b) encryption of personal data ;
(c) processes to ensure security, integrity, confidentiality, availability
and resilience of processing systems and services ;
(d) processes to restore availability of and access to personal data in a
timely manner, in the event of a physical or technical incident ;
(e) periodic assessments of risks to processing systems and services,
including where the processing involves the transmission of data over an
electronic communications network ;
(f ) regular testing, assessing, and evaluation of the effectiveness of the
measures implemented against current and evolving risks identified ; and
(g) regular updating of the measures and introduction of new measures
to address shortcomings in effectiveness, and accommodate evolving risks.
40.—(1) Where a personal data breach has occurred with respect to Personal
personal data being stored or processed by a data processor, the data processor data
shall, on becoming aware of the breach — breaches
(a) notify the data controller or data processor that engaged it,
describing the nature of the personal data breach including, where possible,
the categories and approximate numbers of data subjects and personal
data records concerned ; and
(b) respond to all information requests from the data controller or data
processor that engaged it, as they may require to comply with their obligations
under this section.
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A 742 2023 No. 37 Nigeria Data Protection Act, 2023
(2) A data controller shall, within 72 hours of becoming aware of a
breach which is likely to result in a risk to the rights and freedoms of individuals,
notify the Commission of the breach and, where feasible, describe the nature
of the personal data breach including the categories and approximate numbers
of data subjects and personal data records concerned.
(3) Where a personal data breach is likely to result in a high risk to the
rights and freedoms of a data subject the data controller shall immediately
communicate the personal data breach to the data subject in plain and clear
language, including advice about measures the data subject could take to
mitigate effectively the possible adverse effects of the data breach and if a
direct communication to the data subject would involve disproportionate effort
or expense, or is otherwise not feasible, the data controller may instead make
a public communication in one or more widely used media sources such that
the data subject is likely to be informed.
(4) The notifications and communications referred to in subsections (1),
(2) and (3) shall, in addition to the requirements of those subsections —
(a) communicate the name and contact details of a point of contact of
the data controller, where more information can be obtained ;
(b) describe the likely consequences of the personal data breach ; and
(c) describe the measures taken or proposed to be taken to address the
personal data breach, including, where appropriate, measures to mitigate
its possible adverse effects.
(5) The Commission may, at any time, make a public communication
about a personal data breach notified to it under subsection (2), where it
considers the steps of the data controller to inform data subjects inadequate.
(6) The Commission shall issue and publish regulations on the steps to
be taken by a data controller to adequately inform data subjects of a personal
data breach for purposes of subsection (3).
(7) In evaluating whether a personal data breach is likely to result in a
risk to the rights and freedoms of a data subject under subsection (3), a data
controller and the Commission may take into account —
(a) the likely effectiveness of any technical and administrative measures
implemented to mitigate the likely harm resulting from the personal data breach,
including any encryption or de-identification of the data ;
(b) any subsequent measures taken by the data controller to mitigate
such risk ; and
(c) the nature, scope and sensitivity of the personal data involved.
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Nigeria Data Protection Act, 2023 2022 No. 37 A 743
(8) A data controller and data processor shall keep a record of all personal
data breaches, comprising the facts relating to the personal data breach, its
effects and the remedial action taken in a manner that enables the Commission
to verify compliance with this section.
(9) Where it is not possible to provide information under this section at
the same time, the information may be provided in phases without undue delay.
PART VIII — CROSS-BORDER TRANSFERS OF PERSONAL DATA
41.—(1) A data controller or data processor shall not transfer or permit Basis for
personal data to be transferred from Nigeria to another country, unless — cross-border
transfer of
(a) the recipient of the personal data is subject to a law, binding corporate
personal
rules, contractual clauses, code of conduct, or certification mechanism that data
affords an adequate level of protection with respect to the personal data in
accordance with this Act ; or
(b) one of the conditions set out in section 43 of this Act applies.
(2) A data controller or data processor shall record the basis for transfer
of personal data to another country under subsection (1) and the adequacy of
protection under section 42 of this Act.
(3) The Commission may make regulations requiring data controllers
and data processors to notify it of the measures in place under subsection (1)
and to explain their adequacy in terms of section 42 of this Act.
(4) The Commission may, by regulations, designate categories of personal
data that are subject to additional specified restrictions on transfer to another
country based on the nature of such personal data and risks to data subjects.
42.—(1) A level of protection is adequate for the purposes of this section Adequacy of
if it upholds principles that are substantially similar to the conditions for protection
processing of the personal data provided for in this Act.
(2) The adequacy of protection referred to in subsection (1) shall be
assessed taking into account the —
(a) availability of enforceable data subject rights, the ability of a data
subject to enforce such rights through administrative or judicial redress,
and the rule of law ;
(b) existence of any appropriate instrument between the Commission
and a competent authority in the recipient jurisdiction that ensures adequate
data protection ;
(c) access of a public authority to personal data ;
(d) existence of an effective data protection law ;
(e) existence and functioning of an independent, competent data
protection, or similar supervisory authority with adequate enforcement
powers ; and
--- PAGE 28 ---
A 744 2023 No. 37 Nigeria Data Protection Act, 2023
(f ) international commitments and conventions binding on the relevant
country and its membership of any multilateral or regional organisations.
(3) The Commission shall issue guidelines as to the assessment of
adequacy and the factors set out under subsection (2).
(4) The Commission may determine whether a country, region or specified
sector within a country, or standard contractual clauses, affords an adequate
level of protection under subsection (1).
(5) The Commission may approve binding corporate rules, codes of conduct,
certification mechanisms or similar instruments for data transfer proposed to it,
where the Commission is satisfied that such instruments meet appropriate
standards of data protection in accordance with the objectives of this Act.
(6) The absence of a determination by the Commission under subsection
(4) or (5) with respect to a country, territory, sector, binding corporate rules,
contractual clause, code of conduct, or certification mechanism shall not imply
the adequacy of the protections afforded by it.
(7) The Commission may make a determination under subsection (4)
based on adequacy decision made by a competent authority of other
jurisdictions, where such decision have taken into account factors similar to
those listed in this section.
Other bases 43.—(1) In the absence of adequacy of protection under section ż42 of
for transfer this Act, a data controller or data processor shall only transfer personal data
of personal
from Nigeria to another country if the—
data outside
Nigeria (a) data subject has provided and not withdrawn consent to such transfer
after having been informed of the possible risks of such transfers for the data
subject due to the absence of adequate protections ;
(b) transfer is necessary for the performance of a contract to which a
data subject is a party or in order to take steps at the request of a data subject,
prior to entering into a contract ;
(c) transfer is for the sole benefit of a data subject and —
(i) it is not reasonably practicable to obtain the consent of the data subject
to that transfer, and
(ii) if it were reasonably practicable to obtain such consent, the data
subject would likely give it ;
(d) transfer is necessary for important reasons of public interest ;
(e) transfer is necessary for the establishment, exercise, or defense of
legal claims ; or
(f ) transfer is necessary to protect the vital interests of a data subject
or of other persons, where a data subject is physically or legally incapable of
giving consent.
--- PAGE 29 ---
Nigeria Data Protection Act, 2023 2022 No. 37 A 745
(2) Without prejudice to any provision of this Act, no specific international,
multi-national cross border data transfer codes, rules or certification
mechanisms shall be adopted as Federal Republic of Nigeria standard for the
protection of data subject or data sovereignty without approval of the National
Assembly.
PART IX — REGISTRATION AND FEES
44.—(1) Data controllers and data processors of major importance
Registration
shall register with the Commission within six months after the commencement
of data
of the Act or on becoming a data controller or data processor of major
controllers
importance. and data
processors
(2) Registration under subsection (1) shall be made by notifying the
of major
Commission of —
importance
(a) the name and address of the data controller or data processor, and
name and address of the data protection officer of the data controller or
data processor ;
(b) a description of personal data and the categories and number of
data subjects to which the personal data relate ;
(c) the purposes for which personal data is processed ;
(d) the categories of recipients to whom the data controller or data
processor intends or is likely to disclose personal data ;
(e) the name and address, or name and address of any representative of
any data processor operating directly or indirectly on its behalf ;
(f ) the country to which the data controller or data processor intends,
directly or indirectly to transfer the personal data ;
(g) a general description of the risks, safeguards, security measures
and mechanisms to ensure the protection of the personal data ; and
(h) any other information required by the Commission.
(3) A data controller or data processor of major importance shall notify
the Commission of any significant change to the information submitted under
subsection (2) within 60 days after such change.
(4) The Commission shall maintain and publish on its website a register
of duly registered data controllers and data processors of major importance.
(5) A data controller or data processor shall be removed from the register
of the Commission, where it notifies the Commission that it has ceased to
operate as a data controller or data processor of major importance.
(6) The Commission may exempt a class of data controllers or data
processors of major importance from the registration requirements of this
section, where it considers such requirement to be unnecessary or
disproportionate.
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A 746 2023 No. 37 Nigeria Data Protection Act, 2023
Fees and 45. The Commission may prescribe fees or levies to be paid by data
levies
controllers and data processors of major importance.
PART X — ENFORCEMENT
Complaints 46.—(1) A data subject, who is aggrieved by the decision, action, or
and inaction of a data controller or data processor in violation of this Act, or subsidiary
investigations legislation made under this Act may lodge a complaint with the Commission.
(2) The Commission may investigate any complaint referred to it, where
it appears to the Commission that the complaint is not frivolous or vexatious.
(3) The Commission may initiate an investigation of its own accord where
it has reason to believe a data controller or data processor has violated or is
likely to violate this Act or any subsidiary legislation made under this Act.
(4) The Commission may, for the purpose of an investigation, order a
person to —
(a) attend at a specific time and place for the purpose of being examined
orally in relation to a complaint ;
(b) produce such document, record, or article, as may be required with
respect to any matter relevant to the investigation, which the person is not
prevented by any other written law from disclosing ; or
(c) furnish a statement in writing made under oath or an affirmation
setting out all information, which may be required under the order.
(5) Where any material to which an investigation relates, consists of
information stored in any document, record, minutes, mechanical or electronic
device, the Commission may require the person named to produce such material
or give access to the Commission to conduct an inspection on the material.
(6) For the purposes of subsection (5), the person shall ensure that the
information relating to the material under investigation is visible and legible, in
a structured, commonly used and machine-readable format.
(7) The Commission may, where necessary, make representations to —
(a) the data controller or data processor on behalf of a complainant ; or
(b) a complainant on behalf of the data controller or data processor.
(8) The Commission shall —
(a) establish a unit to receive and follow up on complaints from data
subjects and conduct investigations ; and
(b) adopt rules and procedures on handling complaints and conducting
investigations referred to it under this Act.
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Nigeria Data Protection Act, 2023 2022 No. 37 A 747
47.—(1) Where the Commission is satisfied that a data controller or Compliance
data processor has violated or is likely to violate any requirement under this orders
Act or subsidiary legislation made under this Act, the Commission may make
an appropriate compliance order against that data controller or data processor.
(2) The order made by the Commission under subsection (1) may
include a —
(a) warning that certain act or omission is likely to be a violation of one
or more provisions under this Act or any subsidiary legislation or orders
issued under it ;
(b) requirement that the data controller or data processor complies with
such provisions, including complying with the requests of a data subject to
exercise one or more rights under this Act ; or
(c) cease and desist order requiring the data controller or data processor
to stop or refrain from doing an act, which is in violation of this Act, including
stopping or refraining from processing personal data that is the subject of
the order.
(3) An order made under this section shall be in writing and shall
specify —
(a) the provisions of this Act that the Commission is satisfied the data
controller or data processor has violated ;
(b) specific measures to be taken by the data controller or data processor to
avoid, remedy, or eliminate the situation which has resulted in the violation ;
(c) a period within which to implement such measures ; and
(d) a right to judicial review under section 50 of this Act.
48.—(1) Notwithstanding any criminal sanctions under this Act, if the Enforcement
Commission, after completing an investigation under section 46 of this Act, is orders
satisfied that a data controller or data processor has violated any provision of
this Act or subsidiary legislation made under this Act, it —
(a) may make any appropriate enforcement order or impose a sanction
on the data controller or data processor ; and
(b) shall inform the data controller or data processor, and if applicable,
any data subject who lodged a complaint leading to the investigation, in
writing of its decision.
(2) An enforcement order made or sanction imposed under subsection
(1) shall include —
(a) requiring the data controller or data processor to remedy the violation ;
(b) ordering the data controller or data processor to pay compensation
to a data subject, who has suffered injury, loss, or harm as a result of a
violation ;
--- PAGE 32 ---
A 748 2023 No. 37 Nigeria Data Protection Act, 2023
(c) ordering the data controller or data processor to account for the
profits realised from the violation ; or
(d) ordering the data controller or data processor to pay a penalty or
remedial fee.
(3) A penalty or remedial fee under subsection (2)(d) may be an amount
up to the —
(a) higher maximum amount, in the case of a data controller or data
processor of major importance ; or
(b) standard maximum amount, in the case of a data controller or data
processor not of major importance.
(4) The “higher maximum amount” shall be the greater of —
(a) N10,000,000, and
(b) 2% of its annual gross revenue in the preceding financial year.
(5) The “standard maximum amount” shall be the greater of —
(a) N2,000,000, and
(b) 2% of its annual gross revenue in the preceding financial year.
(6) The Commission shall, in determining the sanctions, take into
consideration the —
(a) nature, gravity, and duration of the infringement ;
(b) purpose of the processing ;
(c) number of data subjects involved ;
(d) level of damage and damage mitigation measures implemented ;
(e) intent or negligence ;
(f ) degree of cooperation with the Commission ; and
(g) types of personal data involved.
Offences 49.—(1) A data controller or data processor, who fails to comply with
and orders made under section 47 of this Act commits an offence and is liable on
penalties
conviction to —
(a) a fine of up to the —
(i) higher maximum amount, in the case of a data controller or data
processor of major importance, or
(ii) standard maximum amount, in the case of a data controller or
data processor not of major importance ; or
(b) imprisonment for a term not more than one year or both.
Judicial 50. A person who is not satisfied with an order of the Commission, may
review apply to the court for judicial review within 30 days after the order was made.
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Nigeria Data Protection Act, 2023 2022 No. 37 A 749
51. A data subject, who suffers injury, loss, or harm as a result of a Civil
violation of this Act by a data controller or data processor, may recover remedies
damages from such data controller or data processor in civil proceedings.
52. Notwithstanding anything to the contrary, the Court may make an Forfeiture
order of forfeiture against a convicted data controller, data processor, or
Act No. 16,
individual in accordance with the Proceeds of Crime (Recovery and
2022
Management) Act.
53.—(1) Where an offence has been committed by a body corporate or Joint and
firm, the body corporate or firm, as well as principal officers of the body vicarious
liability
corporate or firm shall be deemed culpable, unless the principal officers prove
that —
(a) the offence was committed without their consent or connivance ; and
(b) they exercised diligence to prevent the commission of the offence.
(2) A data controller and data processor shall be vicariously liable for
the acts or omissions of its agent or employees, in so far as the acts or omissions
relate to its business.
PART XI — LEGAL PROCEEDINGS
54.—(1) A suit shall not be instituted against the Commission, a member Limitation of
of the Council, or staff of the Commission for an act done under or in execution suits against
the
of this Act, or any public duty of the Commission, unless —
Commission
(a) it is commenced within three months after the act, neglect, or default
complained of ; or
(b) in the case of continued damage or injury, within three months after
the ceasing of such act, neglect or default complained of.
(2) A suit shall not be commenced against the Commission, a member
of the Council, or staff of the Commission before the expiration of one month
after written notice of intention to commence the suit is served on the
Commission, a member, or staff of the Commission by the intending plaintiff
or plaintiff’s agent.
(3) The notice referred to in subsection (2) shall clearly state the —
(a) cause of action ;
(b) particulars of the claim ;
(c) name and place of abode of the intending plaintiff ; and
(d) relief sought.
(4) Subject to the provisions of this Act, the provisions of the Public Cap. P41,
Officers Protection Act, shall apply in relation to any suit instituted against an LFN, 2004
official or employee of the Commission.
--- PAGE 34 ---
A 750 2023 No. 37 Nigeria Data Protection Act, 2023
Service of 55. A notice, summons, process, or document, required or authorised to
documents be served on the Commission under the provisions of this Act or any other law
or enactment, may be served by delivering it to the National Commissioner at
the head office of the Commission.
Restriction 56.—(1) An execution or attachment process shall not be issued against
on execution the property of the Commission, in respect of an action or suit against the
against
Commission.
property of
the (2) A sum of money which may be the judgment of any court awarded
Commission
against the Commission shall be paid from the Fund of the Commission.
Indemnity of 57. The National Commissioner, a member of Council, staff of the
staff, Commission, or other persons engaged by the Commission shall be indemnified
members, out of the assets of the Commission against —
and
employees (a) losses, charges, claims, expenses, and liabilities incurred in the
of the discharge of official duties, or
Commission
(b) liability incurred in defending criminal or civil proceedings, where
the —
(i) judgement is given in favour of the National Commissioner, a
member of the Council, or staff of the Commission,
(ii) National Commissioner, a member of the Council, or staff of the
Commission is otherwise acquitted,
(iii) proceedings are otherwise disposed of without any finding or
admission of any material breach of duty, or
(iv) court grants the National Commissioner, a member of the Council,
or staff of the Commission relief from liability for negligence, default,
breach of duty, or breach of trust in relation to the Commission.
Power of 58.—(1) The Commission shall apply ex-parte to a Judge in Chambers
arrest, for the issuance of a warrant for the purpose of obtaining evidence in relation
search, and
to an investigation.
seizure
(2) A Judge may issue a warrant under subsection (1) on the satisfaction
that —
(a) a person has engaged, is engaging, or is likely to engage in a conduct
that contravenes the provisions of this Act ;
(b) the warrant is sought to prevent the commission of an offence under
this Act ;
(c) the warrant is sought to prevent interference with investigative
process under this Act ;
(d) the warrant is for the purpose of investigating data security breaches
and data privacy breaches, or obtaining electronic evidence ; or
(e) the person named in the warrant is preparing to commit an offence
under this Act.
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Nigeria Data Protection Act, 2023 2022 No. 37 A 751
(3) A warrant issued under subsection (2) shall authorise the Commission
to —
(a) in the company of a law enforcement officer, enter and search any
premises, where —
(i) an offence under this Act is being committed,
(ii) there is evidence of the commission of an offence under this Act
or other relevant law,
(iii) there is an urgent need to prevent the commission of an offence
under this Act or other relevant law, or
(iv) where there is reasonable suspicion that a crime under this Act is
or about to be committed ;
(b) stop and search any person found on such premises ;
(c) enter and search any conveyance found on the premises ;
(d) seize, seal, remove, or detain anything which is, or contains evidence
of the commission of an offence under this Act ;
(e) use or cause to be used a computer or other devices to search any
data contained in or available to any computer system or computer network;
(f ) use any technology to decode or decrypt any coded or encrypted data
contained in a computer into readable text or comprehensible format ; or
(g) require any person having charge of or conversant with the operation
of a computer or electronic device in connection with an offence under this
Act to produce such computer or electronic device.
59. A legal officer of the Commission or a private legal practitioner Right to
engaged by the Commission may represent the Commission in civil proceedings, appear in
in respect of matters relating to the business or operations of the Commission. court
PART XII — MISCELLANEOUS PROVISIONS
60. Subject to the provisions of this Act, the Minister may give to the Directives
Commission directives of a general nature or relating generally to matters of by the
policy with respect to the objectives and functions of the Commission, and the Minister
Commission shall comply with the directives.
61.—(1) The Commission may make regulations for carrying out its Regulations
objectives under this Act.
(2) Without prejudice to subsection (1), the regulations may provide for —
(a) the financial management of the affairs of the Commission ;
(b) the protection of personal data and data subjects ;
(c) the manner in which the Commission may exercise any power,
discharge any duty or perform any function under this Act ;
(d) any matter that under this Act is required or permitted to be
prescribed ;
--- PAGE 36 ---
A 752 2023 No. 37 Nigeria Data Protection Act, 2023
(e) the forms of applications and related documents required for the
purposes of this Act ;
(f ) the procedures to be followed under this Act in the submission of
complaints to the Commission ;
(g) frequency of filing and content of compliance returns by data
controllers and data processors of major importance to the Commission ;
(h) fees, fines, and charges prescribed under this Act and such related
matters ; and
(i) any matter that the Commission considers necessary or expedient to
give effect to the objectives of this Act.
(3) The regulations made under this Act may —
(a) create offences in respect of any contravention of the regulations ; and
(b) impose penalty not more than that prescribed in this Act.
(4) The Commission may, prior to making any regulation under this Act,
publish on its website, a draft regulation and a notice inviting comments to be
submitted on the proposed regulation within a stipulated time.
Directives, 62. The Commission may, where necessary, issue directives, codes, or
codes, and guidelines on the —
guidelines
(a) conduct of the business and operations of the Commission in a
manner that —
(i) fosters accountability, ensures transparency and consistency with
the highest ethical standards, and
(ii) ensures compliance with international best practices, as it relates
to the regulation of data protection and privacy ;
(b) budgeting and expenditure of the Commission in accordance with
the provisions of this Act ;
(c) governance code for the Commission ; and
(d) any other matter relevant to the operations of the Commission.
Priority of 63. Where the provisions of any other law or enactment, in so far as
the Act they provide or relate directly or indirectly to the processing of personal data,
are inconsistent with any of the provisions of this Act, the provisions of this
Act shall prevail.
Transitional 64.—(1) A reference to the Nigeria Data Protection Bureau (in this
provisions section referred to as “the Bureau”) existing before the commencement of
this Act, or a document issued in the name of the Bureau, shall be read as a
reference to the Commission established under this Act, and all persons engaged
by the Commission shall have the same rights, powers and remedies as existed
in the Bureau before the commencement of this Act.
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Nigeria Data Protection Act, 2023 2022 No. 37 A 753
(2) For the purpose of subsection (1) —
(a) a person who, prior to the commencement of this Act, was an
officer, employee or member of staff of the Bureau shall continue in office,
and be deemed to have been appointed under this Act on such terms and
conditions not less favourable than that enjoyed prior to the transfer of
service ;
(b) all existing agreements and contracts currently in effect by the
Bureau, as it relates to the provisions of this Act shall continue ;
(c) all records and equipment previously belonging to or allocated for
use to the Bureau shall become, on the effective date of this Act, part of
the records and equipment of the Commission ;
(d) properties held immediately before the commencement of this Act
on behalf of the Bureau shall on the commencement of this Act, be vested
in the Commission established under this Act ;
(e) any proceeding or cause of action pending or existing immediately
before the commencement of this Act by or against the Bureau, in respect
of any right, interest, obligation or liability may be commenced or continued,
as the case may be by the Commission ; and
(f ) all orders, rules, regulations, decisions, directions, licences,
authorisations, certificates, consents, approvals, declarations, permits,
registrations, rates or other documents that are in effect before the coming
into effect of this Act and that are made or issued by the National Information
Technology Development Agency or the Bureau shall continue in effect as
if they were made or issued by the Commission until they expire or are
repealed, replaced, reassembled or altered.
65. In this Act — Interpretation
“automated decision-making” means a decision based solely on automated
processing by automated means, without any human involvement ;
“applicable law” means any law enacted by the National Assembly or
House of Assembly of any State in Nigeria ;
“binding corporate rules” means personal data protection policies and
procedures adhered to by the members of a group of firms under common
control with respect to the transfer of personal data among such members
and containing provisions for the protection of such personal data ;
“biometric data” means personal data resulting from specific technical
processing relating to the physical, physiological, or behavioural
characteristics of an individual, which allow or confirm the unique
identification of that individual, including without limitation by physical
measurements, facial images, blood typing, fingerprinting, retinal scanning,
voice recognition and deoxyribonucleic acid (DNA) analysis ;
--- PAGE 38 ---
A 754 2023 No. 37 Nigeria Data Protection Act, 2023
“certification mechanism” means certification by an official or
professional third-party entity that evaluates the personal data protection
policies and procedures of data controllers and data processors according
to best practices ;
“child” has the meaning ascribed in the Child’s Right Act, No. 26, 2003 ;
“Commission” means the Nigeria Data Protection Commission
established under this Act ;
“consent” means any freely given, specific, informed, and unambiguous
indication, whether by a written or oral statement or an affirmative action,
of an individual’s agreement to the processing of personal data relating to
him or to another individual on whose behalf he has the permission to
provide such consent ;
“Council” means the Governing Council of the Commission established
under this Act ;
“competent authority” includes —
(a) the Government of the Federal Republic of Nigeria or any foreign
government ; or
(b) any state government, statutory authority, government authority,
institution, agency, department, board, commission, or organisation within
or outside Nigeria, exercising executive, legislative, judicial, investigative,
regulatory, or administrative functions ;
“court” means any court of competent jurisdiction ;
“data controller” means an individual, private entity, public Commission,
agency or any other body who, alone or jointly with others, determines the
purposes and means of processing of personal data ;
“data controller or data processor of major importance” means a
data controller or data processor that is domiciled, resident in, or operating in
Nigeria and processes or intends to process personal data of more than such
number of data subjects who are within Nigeria, as the Commission may
prescribe, or such other class of data controller or data processor that is
processing personal data of particular value or significance to the economy,
society or security of Nigeria as the Commission may designate ;
“data processor” means an individual, private entity, public authority, or
any other body, who processes personal data on behalf of or at the direction
of a data controller or another data processor ;
“data subject” means an individual to whom personal data relates ;
“Minister” means the Minister responsible for matters relating to
communications and digital economy ;
“National Commissioner” means the National Commissioner of the
Nigeria Data Protection Commission ;
“personal data” means any information relating to an individual, who
can be identified or is identifiable, directly or indirectly, by reference to an
--- PAGE 39 ---
Nigeria Data Protection Act, 2023 2022 No. 37 A 755
identifier such as a name, an identification number, location data, an online
identifier or one or more factors specific to the physical, physiological, genetic,
psychological, cultural, social, or economic identity of that individual ;
“personal data breach” means a breach of security of a data controller
or data processor leading to or likely to lead to the accidental or unlawful
destruction, loss, alteration, unauthorised disclosure of, or access to, personal
data transmitted, stored, or otherwise processed ;
“President” means the President of the Federal Republic of Nigeria ;
“processing” means any operation or set of operations which is
performed on personal data, whether or not by automated means, such as
collection, recording, organisation, structuring, storage, adaptation, alteration,
retrieval, consultation, use, disclosure by transmission, dissemination or
otherwise making available, alignment, combination, restriction, erasure or
destruction and does not include the mere transit of data originating outside
Nigeria ;
“pseudonymisation” means the processing of personal data in such a
manner that the personal data can no longer be attributed to a specific data
subject without the use of additional information, provided that such
additional information is kept separately and is subject to technical and
organisational measures to ensure that the personal data are not attributed
to an identified or identifiable natural person ;
“sensitive personal data” means personal data relating to an individual’s —
(a) genetic and biometric data, for the purpose of uniquely identifying
a natural person,
(b) race or ethnic origin,
(c) religious or similar beliefs, such as those reflecting conscience or
philosophy,
(d) health status,
(e) sex life,
(f ) political opinions or affiliations,
(g) trade union memberships, or
(h) other information prescribed by the Commission, as sensitive
personal data under section 30 (2), and
“social security laws” means “the Employee Compensation Act, Pension
Reform Act, National Health Insurance Authority Act, National Housing Fund
Act, Nigeria Social Insurance Trust Fund Act, Industrial Trust Fund Act or
any other similar law.
66. This Act may be cited as the Nigeria Data Protection Act, 2023. Citation
--- PAGE 40 ---
A 756 2023 No. 37 Nigeria Data Protection Act, 2023
SCHEDULE Section 8(3)
SUPPLEMENTARY PROVISIONS RELATING TO PROCEEDINGS
OF THE COUNCIL
Council to Regulate Proceedings
1. Subject to the provisions of this Act, the Council may make standing
orders regulating the proceedings of the Council and set up any committee
and the Council shall meet once in a quarter of a year.
Presiding Officer
2. Every meeting of the Council shall be presided over by the Chairman,
and where the Chairman is absent, the members present at the meeting shall
elect one of their members to preside at the meeting.
Quorum
3. The quorum at a meeting of the Council shall be the Chairman, or in
an appropriate case, the person presiding at the meeting under paragraph 2 of
this Schedule, and four other members.
4. The quorum of any committee of Council shall be determined by the
Council.
Voting
5. At a meeting of the Council, each member present shall be entitled to
one vote and any question on which a vote is required shall be determined by
a majority of votes of members present and voting but, in the case of an equal
division of votes, the Chairman or the member presiding over the meeting
shall have a casting vote.
6. Where the Council seeks the advice of any person on a particular
nature, the Council may invite that person to attend for such period as it deems
fit, but the person, who is invited shall not be entitled to vote at any meeting of
the Council and shall not count towards the quorum.
Teleconference meeting
7. In addition to meeting with all participants physically present, the Council
may hold or continue a meeting by the use of any means of communication by
which all the participants can hear and be heard at the same time and such a
meeting is referred to in this item as a “teleconference meeting”.
8. A member of the Council, who participates in a teleconference
meeting shall be taken for all purposes to have been present at the meeting.
9. The Council may establish procedure for teleconference meetings
(including recording the minutes of such meetings) in its minutes book.
--- PAGE 41 ---
Nigeria Data Protection Act, 2023 2022 No. 37 A 757
Committees of the Council
10. Subject to standing orders made by the Council under this Act, the
Council may appoint such number of standing and ad- hoc committees, as it
deems fit to consider and report on any matter with which the Council is
concerned.
11. Every committee appointed under the provisions of paragraph 10
shall be presided over by a member of the Council, and shall be made up of
such number of persons, as the Council may determine in each case.
12. The decision of a committee shall have no effect until it is approved
or ratified by the Council.
Seal of the Commission
13. The affixing of the seal of the Commission shall be done and
authenticated by the signature of the National Commissioner or such other
member authorised by the Council to act for that purpose.
14. A contract or instrument which, if made by a person not being a
body corporate, shall not be required to be under seal, may be made or executed
by the National Commissioner or by any other officer or staff specifically
authorised by the National Commissioner to act for that purpose.
15. A document purporting to be a contract, an instrument, or other
document signed or sealed on behalf of the Commission shall be received in
evidence and shall, unless the contrary is proved, be presumed, without further
proof, to have been so signed and sealed.
Miscellaneous
16. The validity of a proceeding of the Council or its committee is not
adversely affected by —
(a) any vacancy in the membership of the Council ;
(b) any defect in the appointment of a member of the Council, staff, or
committee ; or
(c) reason that a person not entitled to do so took part in the proceeding.
17. A member of the Council or any of its committees, who has a
personal interest in any contract or arrangement entered into or proposed to
be considered by the Commission shall —
(a) disclose to the members of the Council the nature of the interest, in
advance of any consideration of the matter ;
(b) not influence or seek to influence a decision to be made in relation to
the matter ;
--- PAGE 42 ---
A 758 2023 No. 37 Nigeria Data Protection Act, 2023
(c) take no part in any consideration of the matter ; and
(d) be absent from the meeting or that part of the meeting during which
the matter is discussed.
18. If a member of the Council discloses an interest under paragraph
17, the disclosure shall be recorded in the minutes of the meeting of the Council.
I, certify, in accordance with section 2 (1) of the Acts Authentication Act,
Cap. A2, Laws of the Federation of Nigeria 2004, that this is a true copy of
the Bill passed by both Houses of the National Assembly.
SANI MAGAJI TAMBAWAL, fcna
Clerk to the National Assembly
5th Day of June, 2023.
EXPLANATORY MEMORANDUM
This Act provides a legal framework for the protection of personal information
and establishes the Nigeria Data Protection Commission for the regulation of
the processing of personal information.
--- PAGE 43 ---
Nigeria Data Protection Act, 2023 2022 No. 37 A 759
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[TABLES]
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