By Olumide Babalola

My research on the overlap between privacy and defamation led me to the Supreme Court’s judgment in Dr Jeremiah Abalaka v Prof. Ibironke Akinsete (2023) LPELR-60349(SC) where the following statement is published in the law report: “The Appellant claimed that he has found a vaccine to cure HIV/AIDS. The 3rd Respondent, a retired soldier living with HIV used the said vaccine and according to him, he is still HIV positive. The 3rd Respondent also gave the statistics of 30 soldiers who have used the vaccine and some according to him, are dead while others are still living with HIV.”

As it is the unchallenged practice of law reporters in Nigeria to publish verbatim judgments, reading through the judgment, the unmasked identity of the party living with HIV is revealed in the judgment reported by law reports. As a privacy professional, this got me thinking and I share my thoughts in the following brief paragraphs:

a. There are no visible regulators or regulations on law reporting in Nigeria
In her article published in 1972 by the Journal of Legal Pluralism and Unofficial Law, Jill Cottrell Ghai– a former law lecturer at the Ahmadu Bello University, Zaria – traces the history of law reporting in Nigeria to 1915 when the Government Printer in Lagos published the first edition of the (now abandoned or relegated) Nigeria Law Reports. Over 109 years after the debut, my research has been unable to lead me to any regulation, policy, guideline or other legislation of law reporting in Nigeria.

While it is “known” that the Supreme Court issues licences or permits for law reporting, I could not find the legislation upon which these authorizations are issued vis a vis the rules of engagement. If this piece of legislation exists, then it is not publicly accessible, making it impossible for the public to hold law reports to any standards.

b. Court judgments and privacy
Yes, court judgments are public documents, but they are not inimical to the notion of privacy. Otherwise, there would not be statutory and procedural provisions excluding the public from some court proceedings – the definition of which includes court processes and judgments. (see Ezeudu v Adeka (2016) LPELR-40807(CA). For context, while section 36(4)(a) of the 1999 Constitution empowers the court to exclude the public from certain proceedings where the private lives of parties will be prejudiced, section 12 of the Freedom of Information Act allows non-disclosure of information in a public record where disclosure will infringe on the data subject’s privacy. Interestingly, the Matrimonial Causes Act empowers the courts to restrict the publication of parties’ personal information in deserving cases. Neither our courts nor the law reports have taken full advantage of these provisions.

c. Unfair reporting and data minimization
Law reporters are largely unregulated in Nigeria but as data controllers who particularly process sensitive personal data, they are subject to the provisions of the Nigeria Data Protection Act 2023 (NDPA). By section 24(1)(a), law reporting companies are meant to be fair in their handling of personal data especially as reflected in the judgments they publish. Fairness, in data protection parlance, contemplates respecting the (privacy) rights of the data subject. By this principle, data processing must be carried out in a way that does not harm or disadvantage the data subject. This includes ensuring that the data subject’s dignity, privacy, and reputation are protected during and after the data processing. The question is – does publishing a party’s identity or HIV status, as done in Abalaka’s case preserve the dignity of such party?

Additionally, section 24(1)(c) NDPA mandates controllers to process only the minimum personal data necessary for the purpose of collection. This principle is know as ‘data minimization’ designed to protect individuals’ privacy by ensuring that only the minimum amount of personal data necessary for a specific purpose is collected, processed, and retained.
Data minimization requires that only the personal data that is absolutely necessary to achieve a specific purpose should be collected. Any data that is not needed for the defined purpose should not be collected or stored. In reporting judgments, some highly sensitive personal data ought not be published in the report. In Abalaka’s case, the 3rd Respondent’s identity need not be revealed in the law report, this is not necessary for the purpose of reporting a case on defamation. Non-disclosure of his identity will not diminish the report especially since other parties are identified.

d. International best practices
Keeping up with their aspirations to deliver world-class law reporting services, then Nigerian law reports must regulated to maintain such standards. Currently, there is no official regulator/regulation for law reporting in Nigeria. In the UK, they have Judicial Proceedings (Regulation of Reports) Act 1926; the Incorporated Council of Law Reporting for England and Wales (ICLR) regulates law reporting together with the courts which issue practice direction for the publication of judgments e.g Practice Guidance: Anonymisation And Avoidance Of The Identification Of Children; Reporting Restrictions in the Criminal Courts; Transparency In The Family Courts. Publication Of Judgments Practice Guidance etc.

In South Africa, while some cases are filed with anonymised names, some judgments are published with anonymized names for privacy reasons. Cases bordering ion divorce, sexual violence, custody and maintenance of children are routinely filed by masking the parties’ identities and such identities are also concealed in the law reports. In Kenya, the National Council for Law Reporting anonymization guidelines for judgment publications. See Tumaz and Tumaz Enterprises Limited v National Council for Law Reporting [2022] KEHC 14747 (KLR). Nigeria, is long over due for a regulator and regulations in this regard.

Recommendations
The publication of court judgments, often referred to as law reporting, is a critical aspect of legal transparency and the development of jurisprudence. However, in Nigeria, the current approach to law reporting lacks a regulatory framework that ensures the protection of personal data, privacy, and the ethical publication of sensitive information. Given the increasing importance of data protection globally, as well as the growing focus on privacy and fairness, it is essential to align Nigeria’s law reporting practices with international best practices in data protection, privacy, and transparency. From a privacy perspective, these are my humble suggestions:

a. Data Protection Standards in Law Reporting
To ensure fairness of pdata processing, all published/reported judgments ought to adhere to data protection principles by employing data security techniques like pseudonymization or redaction of sensitive personal data, in line with global standards and as required by the NDPA (see section 39). Law reporting entities must implement measures to prevent unauthorized disclosure of personal data, particularly in sensitive cases in their published judgments (e.g., family law, sexual offenses).

b. Establish Clear Guidelines for Publishing Judgments
It is advisable that the Supreme Court (the unofficial regulator) develops workable and enforced guidelines for the publication of court judgments that mandate the protection of personal data and ensure transparency regarding the processing of such data. Such documents should provide practical guidance procedures for redaction or pseudonymization to safeguard individuals’ privacy, especially when personal identifiers are not necessary for legal clarity.

c. Introduce a Regulatory Framework for Law Reporting
The establishment of a regulatory agency, body or department for law reporting is long overdue. The Federal Ministry of Justice can collaborate with the Supreme Court on this initiative to establish a regulatory body or framework that oversees the practice of law reporting, ensuring that published judgments comply with data protection, privacy laws and other standards. Such regulatory body should collaborate with data protection authorities to ensure that law reporting practices align with broader privacy regulations.

d. Anonymization and Redaction
The publication of court judgments, especially those involving sensitive personal data, should be anonymized or redacted to protect the privacy of individuals involved, in line with data minimization and privacy principles. Legal practitioners and publishers of law reports should be required to redact personal identifiers, including full names, addresses, contact details, and any other sensitive information, unless disclosure is essential for the understanding of the judgment. Pseudonyms should be used where applicable.

e. Promote Ethical and Fair Law Reporting Practices
Courts and legal publishers must take into consideration the ethical implications of publishing sensitive personal data in judgments. Failure to protect individuals’ privacy can lead to significant harm and contravene the fairness principle in data protection. Law reporting practices should align with ethical guidelines to ensure that the publication of judgments is fair and does not unjustly expose individuals to harm, including social stigma, reputational damage, or physical risk. The judiciary system should adopt ethical guidelines in line with best practices that require the careful consideration of the public interest, privacy, and fairness when publishing court judgments.