Guidelines on Data Protection. Draft. Version 3.1. Published by

Transcription

1 Guidelines on Data Protection Draft Version 3.1 Published by National Information Technology Development Agency (NITDA) September 2013

2 Table of Contents Section One Preamble Authority Scope Application Purpose Definition of Terms... 4 Section Two Guidelines for Data Collection Guidelines for Data Processing Guidelines for Data Access Guidelines for Data Security Officers Section Three Data Protection Guidelines Principles Principle Principle Principle Principle Principle Principle Principle Principle Page 1

3 Section One 1.1 Preamble The National Information Technology Development Agency (NITDA) is mandated by the NITDA Act of 2007 to develop Information Technology in Nigeria through regulatory policies, guidelines, standards, and incentives. Part of that mandate is to ensure the safety and protection of the Nigerian Citizen s personal identifiable information otherwise known as personal data, object identifiable information and a successful implementation of guidelines on data protection. Many establishments have migrated their businesses to the online environment. Information solutions in both the private and public sectors now drive service delivery in the country. These information systems have thus become critical information infrastructure which must be safeguarded, regulated and protected. This document provides government wide Guidelines on Data Protection. 1.2 Authority National Guidelines on Data Protection are issued by the National Information Technology Development Agency (NITDA) in accordance with NITDA Act They are specifically issued pursuant to sections 6, 17 and 18 of the National Information Technology Development Agency Act 2007 and is subject to periodic review by NITDA. A breach of the Guidelines shall be deemed to be a breach of the Act. These guidelines are mandatory for Federal, State and Local Government Agencies and institutions as well as private sector organizations which own, use or deploy information systems of the Federal Republic of Nigeria. They serve as reference for Data Collectors, Data Custodians, Data Processors, Data Systems Auditors Data Controllers and Security Personnel, among others. Additional data protection and security guidelines may be developed and used at organization discretion in accordance with these guidelines. Page 2

4 1.3 Scope 1. These Guidelines cover the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system. 2. These Guidelines does not cover the processing of personal data processing operations concerning public security, defense, national security and the activities of the nation in areas of criminal law. 3. These Guidelines covers data controller or processor (organization) or the data subject (person) operating within Nigeria and the Guidelines also covers organizations based outside Nigeria if they process personal data of Nigeria residents. 1.4 Application The Data Protection Guidelines contained herein shall apply to all data controller in public and private sector as defined in these guidelines. 1.5 Purpose The purpose of this document is to: 1. Prescribe guidelines for all organizations or persons that control, collect, store and process personal data of Nigeria residents within and outside Nigeria for protecting of a specific category of data commonly known as Personal Data or Object Identifiable Information (OII). 2. Prescribes minimum data protection requirements for the collection, storage, processing, management, operation, and technical controls for information in this category. Page 3

5 1.6 Definition of Terms Data Protection Guidelines - Data Protection Guidelines is the guidelines on the processing of information relating to identifiable individual s Personal Data, including the obtaining, holding, use or disclosure of such information to protecte such information from inappropriate access, use, and disclosure. Personal Data- Personal data is any information relating to an identified or identifiable natural person ("data subject"); information relating to an individual, whether it relates to his or her private, professional or public life. It can be anything from a name, address, a photo, an address, bank details, posts on social networking websites, medical information, or a computer s IP address. Data Subject- OII- DPG- Processing of Personal Data- An identifiable person; one who can be identified directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity. Object Identifiable Information Data Protection Guidelines Processing of personal data shall mean any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or Page 4

6 alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Data Controller- Data Controller shall mean the natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means of the processing of personal data; where the purposes and means of processing are determined by national or Community laws or regulations, the controller or the specific criteria for his nomination may be designated by national or Community law. Data Custodian- Data Custodian is responsible for providing a secure infrastructure in support of the data, including, but not limited to, providing physical security, backup and recovery processes, granting access privileges to system users as authorized by data trustees or their designees and implementing and administering controls over the information. Data Processor- Personal Data Filing System- Data Processor shall mean natural or legal person, public authority, agency, organizations or any other body involved in processing of personal data or processes personal data on behalf of a controller. Personal data filing system shall mean any structured set of personal data which are accessible according to specific criteria, whether centralized, decentralized or dispersed. Page 5

7 Third Party- Third Party shall mean any natural or legal person, public authority, agency or any other body other than the data subject, the controller, the processor and the persons who, under the direct authority of the controller or the processor, are authorized to process personal data. Recipient- The Data Subject's Consent- Recipient shall mean a natural or legal person, public authority, agency or any other body to whom data are disclosed, whether a third party or not. The Data Subject's Consent shall mean any freely given specific and informed indication of his wishes by which the data subject signifies his agreement to personal data relating to him being processed. Data subject access request- The mechanism for an individual to request a copy of their data under a formal process and payment of a fee Sensitive personal data- Data relating to religious or other beliefs, sexual orientation, health, race, ethnicity, political views, trades union membership, criminal record. Data Portability- Data Portability shall mean a data subject s ability to request a copy of personal data being processed in a format usable by this person and be able to transmit it electronically to another processing system Page 6

8 Section Two 2.1 Guidelines for Data Collection 1. Data Controllers shall protect the privacy of natural persons with respect to the processing of personal data in accordance with the prescription of these guidelines and the provisions and prescriptions of Section 5; Part 1 and Part 2 of National Information Systems and Network Security Standards and Guidelines. 2. The collection of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life should not be undertaken except:- a. the data subject has given his explicit consent to the collection and processing of those data; or b. collection and processing is necessary for the purposes of carrying out the obligations and specific function of the controller in the field of employment; or c. collection and 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 his consent; or d. collection and processing is carried out in the course of its legitimate activities with appropriate guarantees by a foundation, association or any other non-profit-seeking body with a political, philosophical, religious or trade-union aim and on condition that the processing relates solely to the members of the body or to persons who have regular contact with it in connection with its purposes and that the data are not disclosed to a third party without the consent of the data subjects; or e. the collection and processing relates to data which are manifestly made public by the data subject or is necessary for the establishment, exercise or defense of legal claims. Page 7

9 3. Where the data have not been obtained from the data subject, controller or his representative must at the time of undertaking the recording of personal data or if a disclosure to a third party is envisaged, no later than the time when the data are first disclosed provide the data subject with at least the following information, except where he already has it: a. the identity of the controller and of the representative, if any, b. the purposes of the processing, c. any further information such as: i ii the categories of data concerned the recipients or categories of recipients; iii the existence of the mechanism for access to and the mechanism to rectify the data concerning the data subject 4. The transfer to another country of personal data which are undergoing processing or are intended for processing after transfer shall take place only if, without prejudice to compliance with the provisions of these guidelines pursuant to the provisions and prescription of Section 3; Part 1 and Part 2 of National Information Systems and Network Security Standards and Guidelines, the country in question ensures an adequate level of protection. 5. Controllers shall bring into force the directives and administrative provisions necessary to comply with these guidelines at the latest by the end of a period of twelve months from the date of its adoption and ensure that processing already under way on the date the national provisions pursuant to these guidelines enter into force, is brought into conformity with these provisions within twelve months of this date. 6. In order to ensure that people in Nigeria understand and have confidence in the proper use and safety of personal information, organizations shall implement effective privacy policies and procedures and shall state those privacy policies both online and offline. Page 8

10 2.2 Guidelines for Data Processing 1. Personal data must be processed fairly and lawfully; a. collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Further processing of data for historical, statistical or scientific purposes shall not be considered as incompatible provided that safeguards are in place and in compliance with the provisions of this document. b. adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed. c. accurate and, where necessary, kept up to date; every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they were collected or for which they are further processed, are erased or rectified; d. kept in a form which permits identification of data subjects for no longer than is necessary for the purposes for which the data were collected or for which they are further processed. 2. Personal data may be processed only if: a. the data subject has unambiguously given his consent, or b. processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract, or c. processing is necessary for compliance with a legal obligation to which the controller is subject, or d. processing is necessary in order to protect the vital interests of the data subject, or e. processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed, or Page 9

11 f. processing of the data is required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services, and where those data are processed by a health professional subject under national law or rules established by national competent bodies to the obligation of professional secrecy or by another person also subject to an equivalent obligation of secrecy. g. processing of data is related to offences, criminal convictions and a complete register of criminal convictions may be kept only under the control of official authority. h. data relating to administrative sanctions or judgments in civil cases shall also be processed under the control of official authority. i. processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests or privacy of the data subject which require protection under paragraph 1 of this section. 3. Every data subject shall be able to obtain from the controller without constraint at reasonable intervals and without excessive delay or expense:- a. confirmation as to whether or not data relating to data subject are being processed and information at least as to the purposes of the processing, the categories of data concerned, and the recipients or categories of recipients to whom the data are disclosed; b. communication to data subject in an intelligible form of the data undergoing processing and of any available information as to their source; c. knowledge of the logic involved in any automatic processing of data concerning data subject at least in the case of the automated decisions. Page 10

12 d. rectification, erasure or blocking of data which does not comply with the provisions of these guidelines, in particular because of the incomplete or inaccurate nature of the data; e. notification to third parties to whom the data have been disclosed of any rectification, erasure or blocking carried out in compliance with these guidelines. 4. The controller shall implement technical and organizational measures to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing. Having regard to the state of the art systems and the cost of their implementation, such measures shall ensure a level of security appropriate to the risks represented by the processing and the nature of the data to be protected with secure connection and encryption as minimum. 5. The carrying out of processing by way of a processor must be governed by a contract or legal agreement binding the processor to the controller and stipulating in particular that: a. the processor shall act only on instructions from the controller; b. the obligations set out in paragraph 4 shall also be incumbent on the processor. 6. For the purposes of keeping proof, the parts of the contract or the legal agreement relating to data protection and the requirements relating to the measures referred to in paragraph 4 shall be in writing. 7. The data subject shall have the option to:- a. object to request and free of charge, to the processing of personal data relating to him which the controller anticipates being processed for the purposes of direct marketing, or b. to be informed before personal data are disclosed for the first time to third parties or used on their behalf for the purposes of direct marketing, and to be expressly offered the Page 11

13 mechanism for objection free of charge to such disclosures or uses. c. controllers shall provide information clearly; to ensure that data subjects are aware of the existence of the option referred to in a above. 8. Any person acting under the authority of the controller or of the processor, including the processor, who has access to personal data must not process them except on instructions from the controller, unless he is required to do so by law. 9. The controller shall, where processing is carried out on his behalf, choose a processor providing sufficient guarantees in respect of the technical security measures and organizational measures governing the processing to be carried out, and must ensure compliance with those measures. 2.3 Guidelines for Data Access 1. Data Controllers shall neither restrict nor hinder the free flow of personal data between authorized third parties. 2. A user shall be able to request a copy of personal data being processed in a format usable by this person and be able to transmit it electronically to another processing system. 3. Controller or the representative must provide a data subject from whom data are collected with at least the following information, except where such person already has it: a. the identity of the controller and of the representative, if any, b. the purposes of the processing for which the data are intended, c. any further information such as: i the recipients or categories of recipients of the data; Page 12

14 ii whether replies to the questions are obligatory or voluntary, as well as the possible consequences of failure to reply; iii the existence of the mechanism for access to and the mechanism to rectify the data concerning him insofar as such further information is necessary, having regard to the specific circumstances in which the data are collected, to ensure fair processing in respect of the data subject. 4. The adequacy of the level of protection afforded by another country shall be assessed in the light of all the circumstances surrounding a data transfer operation or set of data transfer operations; particular consideration shall be given to the nature of the data, the purpose and duration of the proposed processing operation or operations, the rules of law, both general and sectorial, in force in the receiving country in question and the professional rules and security measures which are complied with in that country which shall not be lower than the content of the guidelines contained herein this document. 5. Where the controller finds that any country does not ensure an adequate level of protection within the contents of these guidelines, controller shall prevent any transfer of data to the country in question. 6. Any person who has suffered damage as a result of an unlawful processing operation or of any act incompatible with the national provisions pursuant to these guidelines is entitled to receive compensation from the controller for the damage suffered. 2.4 Guidelines for Data Security Officers 1. Each organization shall designate an employee of that organization as the organization s Data Security Officer whose duty shall include: i. Ensuring that organization adhered to the stated policies. Page 13

15 ii. iii. Ensuring continued adherence to data protection and privacy policies and procedures. Ensuring that individual data is protected; and provide for effective oversight of the collection and use of individual information. iv. Be responsible for effective data protection and management within that organization; and ensure compliance with the privacy and data security policies. v. Training and education for employees to promote awareness of and compliance with the privacy and data security policies vi. Developing recommended practices and procedures to ensure compliance with the privacy and data security policies. 2. Not later than 12 months after the date of adoption of these guidelines, each organization shall conduct a detailed benchmark assessment of the privacy and data protection policies and practices of that organization with regard to the collection, use, sharing, disclosure, transfer, and security of personally identifiable information relating to the organization employees and the public. At a minimum, each benchmark assessment shall determine and state: i. the personally identifiable information the organization collects on employees of the organization; and members of the public; ii. any purpose for which the personally identifiable information is collected; iii. iv. any notice given to individuals regarding the collection and use of personal information, relating to that individual; any access given to individuals to review, amend, correct, supplement, or delete personal information relating to that individual; Page 14

16 v. whether or not consent is obtained from an individual before personally identifiable information is collected, used, transferred, or disclosed and any method used to obtain consent; vi. vii. viii. ix. the policies and practices of the organization for the security of personally identifiable information; the policies and practices of the organization for the proper use of personally identifiable information; the training and education procedures of the organization to adequately train personnel; organization policies and procedures for privacy and data protection; x. the policies and procedures of the organization for monitoring and reporting violations of privacy and data protection policies; and xi. the policies and procedures of the organization for assessing the impact of technologies on the stated privacy and security policies. Page 15

17 Section Three 3.1 Data Protection Guidelines Principles Data Protection Guidelines consists of eight principles which are guidelines for best practice in handling personal data: Principle 1 Personal data must be processed fairly and lawfully Tell people for which purposes the data is being collected, and if applicable, that the data may be sent outside of Nigeria. Recorded telephone messages are useful tools for enabling these types of message, and can be optional (for example, press 1 to hear the Data Protection message). Notices should be prominent where CCTV is used as these images are covered by the Data Protection guidelines and would be in scope for data subject access requests if the images are not overwritten within 30 days Principle 2 Personal data shall only be used in accordance with the purposes for which it was collected Ensure data collected for one purpose is not then used for a different purpose. This can be covered off by including all likely purposes in the Data Protection fair processing message. The purposes for collecting the data must be reasonable and obviously lawful. Page 16

18 3.1.3 Principle 3 Personal data must be adequate, relevant and not excessive Do not collect data just in case it might be useful Principle 4 Personal data must be accurate and where necessary kept up to date Allow individuals the ability to update their data or to have it updated. This includes marketing communications. It is common practice nowadays for organizations to provide an opt-in approach to marketing ( tick here if you wish to be contacted for marketing purposes ), and to enable the updating of personal data online Principle 5 Personal data must be kept for no longer than is necessary Develop a retention policy for personal data and ensure it is enforced Principle 6 Personal data must be processed in accordance with the rights of data subjects Ensure any requests from individuals for a copy of their data are responded to promptly and the data is provided within 7 days. Establish whether or not you require a fee to be paid, and how it should be paid. Provide opt-in tick boxes for marketing communications and ensure this is accurately captured in systems. Many complaints rightly arise from people receiving marketing s or calls when they have not requested them. Page 17

19 3.1.7 Principle 7 Appropriate technical and organizational measures must be established to protect the data To protect systems from hackers, set up firewalls at your network perimeter, store the data itself securely with only specific authorized individuals having access. Do data encryption. Develop an organizational policy for handling personal data (and other sensitive or confidential data) and set up a staff training program accordingly. Consider additional protection when ing personal data over the internet, as is inherently insecure Principle 8 Personal data must not be transferred outside Nigeria unless adequate provisions are in place for its protection If a requirement exists to send or transfer data outside Nigeria, consider the following: Does the receiving country have an adequate Data Protection Guidelines legislation equivalent to that of Nigeria? Is it necessary to send the data as part of the fulfilment of a contract? Has the data subject consented? (Does the fair processing notice include a statement to the effect that it may be transferred outside Nigeria?) Is the data being processed outside of the Nigeria by another office of the same firm which is established within Nigeria? Is there a contract in place between the data controller and the receiving organization providing for adequate protection of personal data? Page 18