Nigeria’s regulatory landscape has become increasingly intricate, with various agencies empowered to impose significant fines on businesses for non-compliance.

Two recent cases—the fine imposed on Fidelity Bank by the Nigeria Data Protection Commission (NDPC) and the sanction on MultiChoice by the Federal Competition and Consumer Protection Commission (FCCPC)—highlight critical issues surrounding the arbitrariness, transparency, and proportionality of regulatory fines in Nigeria.

By analyzing these cases within the context of the relevant legal frameworks and recent developments, this article sheds light on the broader challenges businesses face in navigating Nigeria’s regulatory environment.

Fidelity Bank and the NDPC Fine.
In October 2023, the NDPC fined Fidelity Bank ₦50 million for breaches of the Nigeria Data Protection Regulation (NDPR) 2019. The NDPC, established to enforce data protection and compliance, accused the Bank of failing to adequately safeguard personal data, resulting in breaches that exposed sensitive customer information.
Relevant Legal Provisions

Section 2.10 of the NDPRmandates organizations to implement appropriate technical and organizational measures to protect personal data against unlawful processing, accidental loss, destruction, or damage.

Section 2.11 of the NDPR, requires data controllers to notify the NDPC of any data breach within 72 hours of becoming aware of it.
Section 4.1 of the NDPR, empowers the NDPC to impose fines up to 2% of a company’s annual gross revenue or ₦10 million, whichever is higher, for severe breaches.
Latest Developments.

Fidelity Bank was accused of violating these provisions by not implementing sufficient safeguards. Although the Bank argued that it had cooperated with the NDPC and taken steps to address the issues before the fine was imposed, the NDPC proceeded with the ₦50 million fine. This decision was criticized for lacking transparency and due process, raising concerns about the proportionality of the penalty relative to the nature of the breach.
MultiChoice and the FCCPC Fine.

In 2022, the FCCPC imposed a ₦25 million fine on MultiChoice Nigeria for violations related to consumer protection laws. The FCCPC found that MultiChoice had engaged in unfair trade practices, particularly in its pricing and customer service practices, which violated the Federal Competition and Consumer Protection Act (FCCPA) 2018.
Relevant Legal Provisions.

Section 17 of the FCCPA, empowers the FCCPC to promote fair, efficient, and competitive markets in Nigeria, including the authority to investigate and sanction companies for anti-competitive or unfair trade practices.

Section 123 of the FCCPA, empowers the FCCPC to impose administrative penalties, including fines, for violations of consumer protection provisions.
Section 51 of the FCCPA, prohibits companies from engaging in unconscionable conduct in trade or commerce, a provision under which MultiChoice was sanctioned.

Latest Developments.
The FCCPC’s investigation into MultiChoice was driven by consumer complaints regarding the company’s business practices. Despite MultiChoice contesting the fine on the grounds of insufficient notice and opportunity to address the concerns, the FCCPC upheld the penalty. The Commission argued that MultiChoice had consistently failed to comply with directives aimed at ensuring transparency and fairness in its operations. Juxtaposing the Two Cases.
These cases highlight significant contrasts and similarities in the enforcement actions taken by different regulatory bodies in Nigeria:

1. Legal Basis and Enforcement. The NDPC’s fine on Fidelity Bank was based on specific data protection violations under the NDPR, emphasizing the importance of safeguarding personal data. In contrast, the FCCPC’s fine on MultiChoice was rooted in broader consumer protection principles under the FCCPA, focusing on fair trade and competitive practices. While both fines were legally grounded, the NDPC’s enforcement appeared more rigid, with less room for negotiation before the penalty was imposed.

2. Transparency and Due Process: Fidelity Bank’s case lacked transparency, with the bank arguing that it was not given sufficient opportunity to contest the fine or present its case. Although the FCCPC’s process in the MultiChoice case was more transparent, issues of due process were still raised, particularly regarding the company’s ability to respond to the Commission’s findings before the fine was enforced.
3. Proportionality and Impact: The fines in both cases were significant, but their proportionality relative to the offenses remains debatable. Fidelity Bank’s fine for a data breach—a relatively new regulatory area in Nigeria—seemed excessive, especially given the bank’s claims of cooperation. In contrast, the FCCPC’s fine on MultiChoice, while substantial, was seen as more proportionate given consumer complaints and the company’s dominant position in the market.
Analysis and Recommendations.

The comparison between these two cases underscores the need for reforms in Nigeria’s regulatory framework to address issues of arbitrariness, transparency, and proportionality:
1. Clearer Guidelines for Fines: Regulatory agencies like the NDPC and FCCPC should establish and publish clear, detailed guidelines on how fines are calculated. These guidelines should consider the severity of the offense, the company’s remedial actions, and other mitigating factors.
2. Enhanced Due Process: Businesses should have a fair opportunity to contest fines and present their defenses before an independent body. This could involve creating specialized tribunals or appeal mechanisms within the regulatory framework to ensure that fines are not imposed arbitrarily.
3. Consistency Across Regulatory Bodies: There should be consistency in how fines are imposed across different sectors and regulatory bodies. Harmonizing enforcement standards and encouraging cross-agency collaboration can reduce perceptions of bias or unequal treatment.
4.Public Accountability and Reporting: Regulatory agencies should be required to publish detailed reports on the fines they impose, including the legal basis, calculation method, and steps taken to ensure due process. This would enhance public trust in regulatory enforcement and encourage businesses to comply with the law.

Conclusion
The fines imposed on Fidelity Bank and MultiChoice underscore significant challenges in Nigeria’s regulatory environment, particularly regarding the transparency and fairness of enforcement actions. While regulation is crucial for protecting public interests and maintaining market order, it must be implemented in a manner that is consistent, predictable, and fair. By addressing these issues through regulatory reform, Nigeria can create a more favorable environment for businesses, encouraging compliance and fostering economic growth while safeguarding consumer rights and public welfare.

Emmanuel Akhigbe, is a Competition Lawyer and writes from Abuja.