The Law Crest LLP’s Case Review Series
Culpability of Telecom Operators for Breach of Privacy via Unsolicited SMS; Suit Number FHC/L/CS/1456/2018 between Mr. Joshua Agbi Esq v. MTN Nigeria Communication Ltd
The Law Crest LLP represented MTN Nigeria Communications Ltd now MTN Nigeria Communications Plc (“MTN” in Suit No. FHC/L/CS/1456/2018: Mr. Joshua Agbi Esq v. MTN Nigeria Communication Ltd (the “Suit”) at the Federal High Court, Lagos Judicial Division (“FHC”), coram Oweibo, J. Judgment was delivered in the Suit on Wednesday, 17th May, 2020, in favour of MTN.
The FHC has, by the judgment, shown that persons alleging breach of their right to privacy by receipt of unsolicited messages have to prove that it was authorized by or done with the connivance of a telecoms operator before they can succeed in an action against the telecoms operator. Thus, it is not the receipt of an unsolicited message which violates a person’s right to privacy that determines the culpability of the telecoms operator, rather, it is the fact that the operator either sent the message by itself or connived with the offending sender.
The Applicant commenced the suit under the Fundamental Rights Enforcement Procedure Rules, 2009 (“FREP Rules”) seeking sundry declarative, injunctive and monetary reliefs amounting to N45,000,000.00 (Forty-Five Million Naira) against MTN. As factual basis for the reliefs sought, the Applicant alleged that he was the holder of a registered mobile telephone number on the Operator’s network on which he received unsolicited Short Messaging Service (SMS) despite subscribing a full Do not Disturb (“DND”) service which ought to automatically exclude him from unsolicited messages. The Applicant further alleged that he received the unsolicited SMS because MTN must have divulged his personal number and provided network services to the senders of the messages in breach of the fiduciary relationship of confidentiality between him and MTN and in violation of his right to privacy.
In response, MTN argued that while the offending messages were received by the Applicant, it was not responsible for sending them directly and neither did it disclose the Applicant’s number to the organizations alleged to have sent the offending messages. MTN argued further that the SMS complained about were “on demand service” over which DND does not apply.
In determining the substance of the Applicant’s case, the FHC construed Section 37 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (( the “Constitution”)) and held that the Applicant’s right to privacy was violated by the unsolicited messages sent to his registered mobile number. The FHC held further that the violation would have included the disclosure of a subscriber’s number to a third party. The FHC thereafter considered the affidavit evidence before it and came to the determination that the Applicant did not prove that MTN sent the unsolicited SMS or was responsible for disclosing his number to a third party. The FHC, while relying on the arguments put up by MTN, noted that the Applicant knew that the messages were from an organization other than MTN and failed to prove that it was MTN that disclosed his phone number to the said organization. Thus, the FHC held that by failing to prove that MTN disclosed his number to the said organization, the Applicant only invited the Court to act on conjectures. On the whole, the application failed and was dismissed.
Agbi’s case is in line with the extant principle of law that he who asserts must prove. The Applicant failed to discharge this burden, hence the outcome of the case. The case also confirms the standpoint that liability will only be established against a telecommunication company where it is found to be directly responsible for violating a subscriber’s DND subscription or for conniving with a third party by disclosing the subscriber’s mobile number.
Very importantly, the Court’s finding that the Applicant’s fundamental right to privacy was breached upon receipt of the messages he claimed were unsolicited shows that the Courts have adopted a rather liberal interpretation of Section 37 of the Constitution which on the flip side is a very loose cannon. A strict application of the Court’s position will mean that the consent of intended recipients of SMS be first sought and obtained by the sender. Thus, individuals, government agencies, marketers and religious organizations etc who use bulk SMS platforms to send unsolicited messages to the general public may be held liable for breach of the right of privacy of such recipients of the unsolicited messages. However, this may pose a great hindrance to information dissemination in Nigeria. Would it now be required that advance consent must first be obtained before SMS and other forms of messages are sent to subscribers of telecommunications networks? How will such a consent be obtained without breaching the privacy rule espoused by the FHC in Agbi’s case?
Therefore, we are of the opinion that what is protected by section 37 of the Constitution is confidentiality of telephone communications and conversations and no more and that it will be impracticable to extend it to the receipt of unsolicited messages. Where a telecoms operator or any person discloses or permits others to access or make public any telephone communication in any form without the consent of the subscriber, a breach of the constitutional right to privacy will be said to have taken place.
It is however noteworthy that though no reference was made to the Court of Appeal decision in CA/A/689/2013: BARR. GODFREY NYA ENEYE V MTN NIG COMMUNICATIONS LTD by FHC in the Judgment delivered by the FHC in the instant case, the same general principle enunciated herein was first affirmed by the Court of Appeal in that case. Thus, despite any misgivings, this remains the law unless upturned by the Supreme Court.
MTN was represented in the suit by Okechukwu Umemuo, FCIArb. UK of The Law Crest LLP.