HOW TO TRANSFER PERSONAL DATA TO A FOREIGN COUNTRY FROM NIGERIA

In today’s digital age, the transfer of personal data across borders has become a common practice, driven by the global nature of business and communication. However, this practice brings with it significant concerns regarding the protection and privacy of data being transferred. Personal data, which includes sensitive information such as names, addresses, financial details, race or ethnic origin, religious beliefs, medical records, etc., must be handled with utmost care to prevent misuse, theft, or breach.

Nigeria, like many other countries, recognizes the importance of safeguarding personal data. The regulatory framework governing data protection in Nigeria aims to ensure that personal information is transferred securely and in compliance with established standards. This article explores the regulatory landscape in Nigeria, focusing on the key provisions of the Nigeria Data Protection Act, 2023 (NDPA) and the Nigeria Data Protection Regulation 2019. It will also examine the challenges and best practices associated with transfer of personal data to a foreign country from Nigeria, the responsibilities of organizations, and the rights of individuals. Understanding and adhering to these regulations is essential for corporate organizations that handle personal data, not only to remain compliant but also to build trust with their customers and partners.

 

WHAT LAWS GOVERN DATA TRANSFER AND PROTECTION IN NIGERIA

Nigeria Data Protection Act, 2023 (NDPA) is the primary law governing data transfer and protection in Nigeria. Other laws include; the Nigeria Data Protection Regulation 2019 (NDPR) which provides a regulatory framework of data protection in Nigeria, ensures the transparency of cross-border personal data transfers, protecting it against misuse, theft, or breach.

 

WHAT THE LAW IN NIGERIA SAYS ABOUT TRANSFERRING PERSONAL DATA TO A FOREIGN COUNTRY FROM NIGERIA

In Nigeria, personal data cannot be transferred to another country by a data controller or data processor unless certain conditions are met (See Sections 41 and 43 of the NDPA):

a. The recipient of the personal data must be subject to a law, binding corporate rules, contractual clauses, code of conduct, or certification mechanism that provides adequate protection for the personal data in line with the NDPA.

b. The data subject has given consent for the transfer after being informed of the potential risks due to inadequate protections and has not withdrawn that consent.

c. The transfer is necessary for the performance of a contract in which the data subject is involved, or to take steps at the request of a data subject before entering into a contract.

d. The transfer is for the sole benefit of a data subject and: (i) it is not reasonably practicable to obtain the data subject’s consent for the transfer, and (ii) if obtaining such consent were reasonably practicable, the data subject would likely provide it.

e. The transfer is necessary for important reasons of public interest.

f. The transfer is necessary for the establishment, exercise, or defense of legal claims.

g. The transfer is necessary to protect the vital interests of a data subject or other persons when a data subject is physically or legally incapable of giving consent.

 

HOW TO TRANSFER PERSONAL DATA TO A FOREIGN COUNTRY FROM NIGERIA

In practical terms, the main parties involved in the transfer of personal data are data processors and data controllers. It is important to establish the definitions of a data controller and a data processor. A data controller is an individual or entity that, alone or in conjunction with others, determines the purpose and manner in which a data subject’s data is processed. For example, a digital savings platform that collects personal information from users, such as email addresses, phone numbers, National Identity Card numbers (NIN), Bank Verification Numbers (BVN), etc., to verify users and create accounts, would be considered a data controller.

A data processor, whether a natural person or entity, processes personal data on behalf of a data controller alone or with others.

Below is a summarized list of precautionary measures for data controllers and processors:

1. Establish a lawful basis for the data transfer, such as obtaining consent from data subjects or having binding corporate data protection policies.

2. Ensure that the receiving country provides an adequate level of data protection comparable to the standards in Nigeria. This may involve implementing appropriate technical and organizational measures to safeguard the data.

3. Establish clear and enforceable agreements outlining the responsibilities and obligations of both parties, including data protection and security requirements.

4. Transfer only necessary data for the intended purpose and minimize the amount of personal data shared.

5. Protect the data subjects’ rights and ensure they can enforce these rights even after the data has been transferred.

6. Conduct regular assessments and audits to verify adherence to data protection measures and to ensure the data remains secure.

By following these steps, data processors and controllers can help ensure the protection of personal data during international transfers in Nigeria.

PENALTIES FOR NON-COMPLIANCE WITH REGULATIONS GOVERNING CROSS-BORDER TRANSFER OF PERSONAL DATA FROM NIGERIA

Non-compliance with the Nigeria Data Protection Act, 2023, in the context of cross-border data transfers, can lead to specific penalties aimed at enforcing the protection of personal data when transferred outside Nigeria. Here are some key penalties associated with cross-border data transfer violations:

1. Administrative Fines: The Nigeria Data Protection Commission (NDPC) can impose significant fines on data controllers and processors who fail to comply with cross-border data transfer regulations.

2. Suspension of Data Transfer: The NDPC may suspend the transfer of personal data to the concerned third country or international organizations until adequate protection measures are put in place.

3. Compliance Orders: Organizations found in violation may be issued orders to implement corrective actions to comply with cross-border data transfer requirements. These orders might include halting the transfer of data, enhancing data protection measures, or rectifying any breaches.

4. Compensational Claims: Data subjects whose personal data is improperly transferred or inadequately protected can seek damages suffered as a result of the breach or report to the Commission, which will investigate the violations and take necessary actions.

5. Criminal Liability: The data controller or processors may face criminal charges for severe or serious cross-border data transfer breaches, which can include imprisonment.

6. Enforcement Notice: The NDPC can issue enforcement notices requiring the data processor or controller to take specific steps to ensure compliance with the NDPA’s cross-border data transfer provisions.

7. Operational Impact: Non-compliance may result in the NDPC restricting or prohibiting the organization from processing personal data, which can significantly impact business operations.

These penalties are designed to ensure that organizations take the necessary steps to protect personal data during cross-border transfers, maintaining high standards of data protection in line with NDPA.

 

CONCLUSION

The transfer of personal data to a foreign country from Nigeria is a complex process that requires careful adherence to regulatory frameworks to ensure data protection and privacy. The Nigeria Data Protection Act provides a strong foundation for managing such transfers, aligning with international standards to safeguard individuals’ personal information. Organizations must navigate the legal requirements diligently, ensuring compliance through comprehensive data protection impact assessments, secure data transfer protocols, and robust data security measures. By adhering to the Act, organizations can not only protect themselves from potential legal repercussions but also build trust with their customers and stakeholders by demonstrating their commitment to data privacy.

As the digital landscape continues to evolve, staying informed about updates to data protection laws and best practices is crucial. By doing so, organizations can effectively manage the risks associated with cross-border data transfers and contribute to a secure digital environment that respects and protects personal data.

For further inquiries about data protection compliance in Nigeria, please contact us through the WhatsApp icon on the lower right part of this page or HERE, and we’ll attend to you.

 

 

Cynthia Tishion
Cynthia is a lawyer and currently serves as Head of Corporate / Commercial Services at LEX – PRAXIS. With her passion for business and entrepreneurship, she is actively engaged in creating awareness on the legal aspect of businesses through various platforms such as writing, public speaking engagements.

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