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OLUMIDE BABALOLA LP & ANOR V. TRUE SOFTWARE SCANDINAVIA AB AND ANOR.
FEDERAL HIGH COURT OF NIGERIA (Abuja Judicial Division)
(Hon. Justice J.K Omotosho)
BACKGROUND FACTS
This case was instituted via an Originating summons at the Federal High Court, Abuja, by Olumide Babalola LP (1st Applicant), a Data Protection Compliance Organisation (DPCO) responsible for protection of data privacy and compliance with the provisions of the Nigerian Data Protection Regulation 2019 (NDPR), and Olasunkami Bello (the 2nd Applicant) against True Software Scandinavia AB (1st Respondent) and National Information Technology Development Agency (NITDA) (the 2nd Respondent). The Applicants alleged that the 2nd Applicant’s personal data (phone number) had been harvested and processed by the 1st Respondent through an application – True Caller managed by the 1st Respondent, without his consent. The Applicants believe that the exposure of their telephone numbers to third parties without their consent has caused and will likely cause
interference with their telephone conversations as they are likely to receive calls from unknown persons who got their number from the software. He further alleged that the harvesting of his phone number, along with other users of the application was an invasion of privacy contrary to Section 37 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended). One of the issues raised for determination was: Whether the fundamental right to privacy of the Applicants was breached by the Respondents.
ARGUMENTS
Learned Counsel for the Applicants argued that Section 37 of the Constitution makes the right to private and family life a fundamental right to be enjoyed by all Nigerians and that this right includes the privacy of telephonic communications and conversations. Counsel submitted that the harvesting of the data of users without their consent and making it available to the whole world is a breach of the fundamental rights of the Applicants. That the 1st Respondent through its True Caller application, collects and controls telephone numbers from users globally, including that of the 2nd Applicant, and makes this data accessible to others using the app which has led to disruptions in telephone conversation and unwanted phone calls from unknown persons. They further stated that their phone numbers were taken without their consent by the 1st Respondent and made available to anyone in the whole world and that this practice constitutes an infringement on the fundamental right to privacy under Nigerian law while relying on provisions of the NDPR.
The 1st Respondent, by a preliminary objection, challenged the court’s jurisdiction to preside over the matter on the ground that True Caller International LLP, based in India, is responsible for the App’s operations, not the 1st Respondent and that there was no proper endorsement for service outside the jurisdiction. They questioned the propriety and locus standi of the 1st Applicant in instituting the suit. In response to the Applicant’s cause of action, the 1st Respondent argued that it does not manage the operations of True Caller in Nigeria, and this responsibility falls on True Caller International LLP (TC India). It denied harvesting or publicly sharing phone contacts of users or non-users. Further arguing, the 1st Respondent stated that the provision of section 37 of the Constitution only covers the conversation and telephonic communication of Nigerians and not their phone numbers and that if the Court should restrict the application of the Section to the homes of the Applicants the Court will find that the 1st Respondent never took the phone numbers from their private servers or private safe, but that the said phone numbers are from the personal data of users who consented to their contacts being available on the TC servers It stated that True Caller only accesses a user’s contacts if granted permission as a dialer app and that the versions on Google Play store and Apple Appstore do not have enhanced search features for retrieving phone numbers by name. The 1st Respondent stated further that the said processing of phone numbers by True Caller is for users to identify the identity of persons who call them with strange numbers and thus it is for public safety under section 45 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
DECISION OF THE COURT
In resolving the issue, the court held that:
The right to privacy extends beyond constitutional definitions and encompasses personal data as per the NDPR. However, it concluded that the Applicants had not demonstrated that their phone numbers were searchable or revealed by True Caller. The court weighed the Respondents’ denial against the Applicants’ claims and found in favour of the Respondents, stating that True Caller’s role was limited to tracing unknown callers rather than harvesting data indiscriminately. The court in examining the definitions of ‘data controller’ and ‘processing’ under the NDPR, determined that the 1st Respondent was not directly responsible for collecting or processing the 2nd Applicant’s phone numbers. Instead, the data controllers were the users who provided consent for their contact information to be used. The court concluded that the alleged infringement of privacy, if any, was attributable to the users who consented to share their contact information, rather than the 1st Respondent.
Issue resolved in favour of the Respondents.
Josephine Tete Onogenni Esq. – for the 1st Respondent
No appearance for the Applicants
This summary is fully reported at (2024) 6 CLRN in association with ALP NG & Co.
See www.clrndirect.com; www.alp.company
