Is The Concept Of ‘Data Privacy’ A Misnomer?

By Olumide Babalola

In the past two years, I have heard and read on varying
platforms, especially by Nigerian privacy enthusiasts and
professionals that, the term ‘data privacy’ does not exist and in
other words – a misnomer. They either argue that privacy can only
be enjoyed by natural persons and that the right cannot be
associated with inanimate objects or that the law does not
contemplate the co-existence of both privacy with non-living
things. In this short article, I will modestly articulate my brief
thoughts on this position that has been repeatedly argued in many
Nigerian privacy fora.

It is however important to always start this kind of discourse
by reminding ourselves of the origin of the term in question. Dr.
Sanjay Sharma argues that the term data privacy is deeply rooted in
the UN Declaration of human rights, but its growth is traceable to
France in the early 70s. (see Sanjay Sharma, ‘A Brief History of
Data Privacy’ in Data Privacy and GDPR Handbook (Wiley, 2019) 23).
This account was also elaborated by the erudite Norwegian professor
of privacy, Lee Bygrave in his book – Data Protection Law:
Approaching its Rationale, Logic and Limits (Information Law
serves, 2002).

Hence, the term is not a new concept as some researchers have
traced its origins to the inception of data protection itself in
the 70s. (see also the account of one of the fathers of data
protection – Prof. Spiros Simitis, ‘Einleitung’ in
Bundesdatenscchutzgesetz – BDSG (7th edn. Nomos, 2011).

Academic intervention
To demonstrate it nuances and its distinction from other similar
terms, some academics have repeatedly used the term ‘data privacy’
in their various publications: Bygrave views it as a matter of
semantics and ‘packaging’ which regulates processing of personal
data and addresses the manner in which personal data is ‘gathered,
registered, stored, exploited and disseminated’ (see L.A. Bygrave,
Data Privacy Law. An International Perspective (Oxford University
Press, 2014) 1).

Gimpel and other German researchers see it as a necessary evil
in the compliance world. (Henner Gimpel, Dominikus Kleindienst,
Niclas Nuske, Daniel Rau, and Fabian Schmied ‘The Upside of Data
privacy- Delighting Customers by Implementing Data Privacy
Measures’ (2018) Electronic Markets, 438)
Jianping He and his Chinese colleagues evaluated some data privacy
issues in network communication in the article titled
‘Consensus-Based Data Privacy Preventing Data Aggregation’ (2019)
64(12) IEEE Transactions on Automatic control,1).

Anna Rohunen & Jolini Markkula, two researchers at the
University of Oulu (Finland) also adopted the term in their article
titled ‘On the road – Listening to Data Subjects Personal Mobility
Data Privacy Concerns’ (2018) Behaviour and Information Technology)
and then Dennis Grishin, a Harvard University scholar and his
co-researchers referenced the term in their work – ‘Data Privacy in
the Age of Personal Genomics’ (2019) 37(10) Nature Biotechnology,
17).

Notwithstanding the foregoing articles, innumerable books have
been written by law researchers with data privacy in the title and
body of text. See David Solomon’s Data Privacy and Security (2003);
Advanced Research in Data Privacy (2015)by Navarro-Arribas
Guillermo and Vincene Torra; African Data Privacy Laws (2016) by
Alex B. Makulilo and; Kim- Kwing Choo and Ali Dehghantanha’s
Handbook of Big data Privacy (2020) etc.

Academics continue to use the term ‘data privacy’
interchangeably with ‘data protection’ and ‘information privacy’
etc. It is instructive to note that, Nigeria’s most prolific
academic writer on privacy and data protection – Dr. Lukman Adebisi
Abdulrauf, a senior lecturer at the University of Ilorin argues
that:

“While some scholars prefer to use the term ‘privacy’ or
information privacy, others will use the term ‘data protection’.
These differences are a reflection of the jurisdiction which the
discussion focuses on. A term recently increasingly being used is
data privacy. Although no recent data privacy instrument has
adopted the term, it seems that data privacy is the current
preferred term as shown in the recent literature of renowned
scholars like Kuner, Bygrave Greenleaf, Makulilo.” (See L.A.
Abdulrauf ‘The Legal Protection of Data Privacy in Nigeria: Lessons
from Canada and South Africa’ (2015)

Constitutional provision on data privacy
Contrary to arguments that inanimate things cannot be associated
with privacy, section 37 of the 1999 Constitution guarantees in
unmistakable terms – ‘privacy of homes’ ‘privacy of
correspondences’ and ‘privacy of telephone conversations’ and
‘privacy of telegraphic communication.’ These are clearly different
from privacy of citizens and they somewhat negate the argument that
only natural persons can enjoy privacy in such context. (See I.N.
Walden and R.N. Savage ‘Data Protection and Privacy Laws: Should
Organizations be protected?’ (1988) 37(2) The International and
Comparative Law Quarterly 337-347).

Hence, if the Constitution can associate privacy with inanimate
things like homes, correspondences and communications, then
associating privacy with data should not necessarily generate
arguments in this regard.

International Data Privacy Day
To give further credence to the term, the international community
celebrates data privacy annually on the 28th day January. The
largest body of privacy professionals in the world – International
Association of Privacy Professionals (IAPP) and other renowned
organizations commemorate this day annually to create awareness for
data privacy. (see IAPP, ‘Celebrate Data Privacy Day with Privacy
Pros Near and Far’ https://iapp.org/connect/data-privacy-day/^[1])

Data Privacy Act
Ultimately, on the 25th day of July 2012, the Filipino congress
enacted what appears to be the first law in world with data privacy
in its title. The Data Privacy Act (Republic Act 10173) was passed
to inter alia protect individual personal information. The term
‘data privacy’ is used seventeen times in the enactment. (see
https://www.privacy.gov.ph/data-privacy-act/)

Conclusion
Reference to the term ‘data privacy’ is simply a matter of
convenience and since Nigeria’s privacy and data protection law and
practice do not have a definitive direction at the moment, we seem
to adopt whatever terminology or concept suits every context. The
NDPR adopts the American concept of personal identifiable
information (PII) with the European version of personal data (PD)
and goes ahead to allude to data privacy (American) and data
protection (EU), all in same document. It is however hoped that the
impending data protection bill would be more consistent with its
legislative transplantation.

However, it is always important to understand the origin of a
term in order to appreciate its aptitude or otherwise given every
peculiar circumstance. Hence, it is conclusive that the term data
privacy is conceivable under the Nigeria data protection legal
framework as far as the extant NDPR is concerned.

By Olumide Babalola

In the past two years, I have heard and read on varying
platforms, especially by Nigerian privacy enthusiasts and
professionals that, the term ‘data privacy’ does not exist and in
other words – a misnomer. They either argue that privacy can only
be enjoyed by natural persons and that the right cannot be
associated with inanimate objects or that the law does not
contemplate the co-existence of both privacy with non-living
things. In this short article, I will modestly articulate my brief
thoughts on this position that has been repeatedly argued in many
Nigerian privacy fora.

It is however important to always start this kind of discourse
by reminding ourselves of the origin of the term in question. Dr.
Sanjay Sharma argues that the term data privacy is deeply rooted in
the UN Declaration of human rights, but its growth is traceable to
France in the early 70s. (see Sanjay Sharma, ‘A Brief History of
Data Privacy’ in Data Privacy and GDPR Handbook (Wiley, 2019) 23).
This account was also elaborated by the erudite Norwegian professor
of privacy, Lee Bygrave in his book – Data Protection Law:
Approaching its Rationale, Logic and Limits (Information Law
serves, 2002).

Hence, the term is not a new concept as some researchers have
traced its origins to the inception of data protection itself in
the 70s. (see also the account of one of the fathers of data
protection – Prof. Spiros Simitis, ‘Einleitung’ in
Bundesdatenscchutzgesetz – BDSG (7th edn. Nomos, 2011).

Academic intervention
To demonstrate it nuances and its distinction from other similar
terms, some academics have repeatedly used the term ‘data privacy’
in their various publications: Bygrave views it as a matter of
semantics and ‘packaging’ which regulates processing of personal
data and addresses the manner in which personal data is ‘gathered,
registered, stored, exploited and disseminated’ (see L.A. Bygrave,
Data Privacy Law. An International Perspective (Oxford University
Press, 2014) 1).

Gimpel and other German researchers see it as a necessary evil
in the compliance world. (Henner Gimpel, Dominikus Kleindienst,
Niclas Nuske, Daniel Rau, and Fabian Schmied ‘The Upside of Data
privacy- Delighting Customers by Implementing Data Privacy
Measures’ (2018) Electronic Markets, 438)
Jianping He and his Chinese colleagues evaluated some data privacy
issues in network communication in the article titled
‘Consensus-Based Data Privacy Preventing Data Aggregation’ (2019)
64(12) IEEE Transactions on Automatic control,1).

Anna Rohunen & Jolini Markkula, two researchers at the
University of Oulu (Finland) also adopted the term in their article
titled ‘On the road – Listening to Data Subjects Personal Mobility
Data Privacy Concerns’ (2018) Behaviour and Information Technology)
and then Dennis Grishin, a Harvard University scholar and his
co-researchers referenced the term in their work – ‘Data Privacy in
the Age of Personal Genomics’ (2019) 37(10) Nature Biotechnology,
17).

Notwithstanding the foregoing articles, innumerable books have
been written by law researchers with data privacy in the title and
body of text. See David Solomon’s Data Privacy and Security (2003);
Advanced Research in Data Privacy (2015)by Navarro-Arribas
Guillermo and Vincene Torra; African Data Privacy Laws (2016) by
Alex B. Makulilo and; Kim- Kwing Choo and Ali Dehghantanha’s
Handbook of Big data Privacy (2020) etc.

Academics continue to use the term ‘data privacy’
interchangeably with ‘data protection’ and ‘information privacy’
etc. It is instructive to note that, Nigeria’s most prolific
academic writer on privacy and data protection – Dr. Lukman Adebisi
Abdulrauf, a senior lecturer at the University of Ilorin argues
that:

“While some scholars prefer to use the term ‘privacy’ or
information privacy, others will use the term ‘data protection’.
These differences are a reflection of the jurisdiction which the
discussion focuses on. A term recently increasingly being used is
data privacy. Although no recent data privacy instrument has
adopted the term, it seems that data privacy is the current
preferred term as shown in the recent literature of renowned
scholars like Kuner, Bygrave Greenleaf, Makulilo.” (See L.A.
Abdulrauf ‘The Legal Protection of Data Privacy in Nigeria: Lessons
from Canada and South Africa’ (2015)

Constitutional provision on data privacy
Contrary to arguments that inanimate things cannot be associated
with privacy, section 37 of the 1999 Constitution guarantees in
unmistakable terms – ‘privacy of homes’ ‘privacy of
correspondences’ and ‘privacy of telephone conversations’ and
‘privacy of telegraphic communication.’ These are clearly different
from privacy of citizens and they somewhat negate the argument that
only natural persons can enjoy privacy in such context. (See I.N.
Walden and R.N. Savage ‘Data Protection and Privacy Laws: Should
Organizations be protected?’ (1988) 37(2) The International and
Comparative Law Quarterly 337-347).

Hence, if the Constitution can associate privacy with inanimate
things like homes, correspondences and communications, then
associating privacy with data should not necessarily generate
arguments in this regard.

International Data Privacy Day
To give further credence to the term, the international community
celebrates data privacy annually on the 28th day January. The
largest body of privacy professionals in the world – International
Association of Privacy Professionals (IAPP) and other renowned
organizations commemorate this day annually to create awareness for
data privacy. (see IAPP, ‘Celebrate Data Privacy Day with Privacy
Pros Near and Far’ https://iapp.org/connect/data-privacy-day/^[1])

Data Privacy Act
Ultimately, on the 25th day of July 2012, the Filipino congress
enacted what appears to be the first law in world with data privacy
in its title. The Data Privacy Act (Republic Act 10173) was passed
to inter alia protect individual personal information. The term
‘data privacy’ is used seventeen times in the enactment. (see
https://www.privacy.gov.ph/data-privacy-act/)

Conclusion
Reference to the term ‘data privacy’ is simply a matter of
convenience and since Nigeria’s privacy and data protection law and
practice do not have a definitive direction at the moment, we seem
to adopt whatever terminology or concept suits every context. The
NDPR adopts the American concept of personal identifiable
information (PII) with the European version of personal data (PD)
and goes ahead to allude to data privacy (American) and data
protection (EU), all in same document. It is however hoped that the
impending data protection bill would be more consistent with its
legislative transplantation.

However, it is always important to understand the origin of a
term in order to appreciate its aptitude or otherwise given every
peculiar circumstance. Hence, it is conclusive that the term data
privacy is conceivable under the Nigeria data protection legal
framework as far as the extant NDPR is concerned.