Niger - Data Protection Overview
1. Governing Texts
Niger, like other countries in the sub-region, aware of the urgency of the moment, hastened to legislate in the field to regulate the protection of personal data by providing a 'legal arsenal' of a preventive but also repressive nature. In this respect, it referred to Law No. 2017-28 of 3 May 2017 on the Protection of Personal Data Law , amended and supplemented by Law N° 2019-71 of 24 December 2019 (only available in French here) ('the Law'), which creates the High Authority for the Protection of Personal Data ('HAPDP').
Personal data is constantly processed at work, in dealings with public authorities, in the health sector, when purchasing goods and services, when travelling, or when searching on the internet. At this level, it should be noted that personal data is defined as 'any information of any nature whatsoever and regardless of its medium, including sound and image, relating to a natural person identified or identifiable directly or indirectly by reference to an identification number or to several specific elements, specific to his physical, physiological, genetic, psychological, cultural, social or economic identity' (see section on key definitions below).
- the Law
- Decree No. 2020-309/PRN/MJ of 30 April 2020 setting the terms of application of Law No. 2017-28 of 3 May 2017 on the protection of personal data (only available in French here) as amended and supplemented by Law No. 2019-71 of 24 December 2019 (only available in French here)
- Order No. 000045 of 5 October 2020 determining the profile and setting the conditions of remuneration of the personal data protection correspondent (only available in French here)
- Law No. 2018-45 of 12 July 2018 on Electronic Communications (only available in French here)
- Law on Cybercrime of 2019 (only available in French here)
The HAPDP is an independent administrative authority set up under the Law.
It announced (only available in French here), on 6 August 2020, that it had officially launched, on 5 August 2020, its operations.
The HAPDP has released the following guidance:
- Guidance on guiding principles for data protection (only available in French here);
- Guidance on the rights of data subjects in the processing of their personal data (only available in French here); and
- Guidance on the duties of the data controller (only available in French here).
The HAPDP has also released the following relevant supplementary resources:
- List of data controllers which have designated a personal data protection correspondent (only available to download in French here); and
- List of data controllers compliant with the Law (only available to download in French here).
Further to this, the HAPDP has provided the following forms to aid in compliance with the Law:
- Form for the designation of the personal data protection correspondent (only available to download in French here);
- Form for declarations to the HAPDP (only available to download in French here);
- Form to request the opinion of the HAPDP (only available to download in French here);
- Form to request authorisation from the HAPDP (only available to download in French here); and
- Form for the request of authorisation to transfer personal data to a third country (only available to download in French here).
1.3. Case law
We have not seen any information relating to case law.
2. Scope of Application
The Law applies to any collection, processing, transmission, storage, and use of personal data by a natural person, the State, local authorities, legal entities under public and private law.
The territorial scope of the Law is the state of Niger.
Under the provisions of the Law, the following types of processing are covered:
- any collection, processing, transmission, storage and use of personal data by an individual, the State and local authorities;
- any automated or non-automated processing of data provided or to appear in a file;
- any data processing in Niger; and
- any processing of data relating to public security, defense, research, and prosecution of criminal offenses or state security;
However, the following are excluded from the scope of the Law:
- data processing carried out by an individual in the exclusive context of their domestic activities, provided, however, that the data is not intended for third parties or for disclosure; and
- temporary copies made as part of the technical activities of transmission and supply of access to a digital network.
3.1. Main regulator for data protection
Pursuant to Article 43 (new) of the Law, the HAPDP is in charge of ensuring that the processing of personal data is carried out in accordance with the provisions of the Law.
3.2. Main powers, duties and responsibilities
The HAPDP is composed of nine members chosen because of their legal and/or technical competence.
The HAPDP's role is to ensure that any processing of personal data is in accordance with the Law. In addition, the HAPDP's responsibilities include informing data controllers and data subjects of their rights and obligations, handling complaints, conducting audits, and sanctioning data controllers who are in breach of the Law.
4. Key Definitions
Personal data: Any personal data that reveals directly or indirectly, racial and ethnic, origins, political, philosophical or religious opinions or trade union affiliation of persons, or that concern their health or sexual life or social measures, prosecution, criminal or administrative sanctions.
Sensitive data: Personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, data concerning health or sex life and sexual orientation, genetic data or biometric data, prosecution, criminal or administrative sanctions.
Data controller: A subcontractor, individual or, public or private legal entity, any other agency or association which processes data for the person in charge of the treatment.
Data processor: The natural or legal person, public or private, any other agency or association which, alone or jointly with others, takes the decision to collect and process personal data and determine the purposes thereof.
Data breach: A breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure, use, backup or transfer process.
Data subject: Any natural person who is the subject of processing of personal data
Biometric data: Not applicable.
Health data: Any information concerning the physical and mental state of a data subject, including the aforementioned genetic data.
Pseudonymisation: Not applicable.
5. Legal Bases
Any processing of personal data can only take place if the person concerned, the data subject, has expressed their consent in a free, specific, informed, and unambiguous manner. The processing of personal data is considered legitimate if the data subject gives their prior express consent.
The requirement of prior consent may be waived where the controller is duly authorised and the processing is necessary for the performance of a contract to which the data subject is party or in order to take pre-contractual measures at their request.
The requirement of prior consent may be waived where the controller is duly authorised and the processing is necessary to comply with a legal obligation to which the controller is subject.
The requirement of prior consent may be waived where the controller is duly authorised and the processing is necessary in order to protect the interests or fundamental rights and freedoms of the data subject.
The requirement of prior consent may be waived where the controller is duly authorised and the 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.
The principles of lawfulness, fairness and transparency
Data must be processed fairly, lawfully, and transparently. The lawfulness of the processing refers to its legal basis (legal obligation, contractual obligation, etc.). Fairness of processing refers to the manner in which the data are collected. This principle refers to the individual's right to information. Data must not have been collected and must not be processed without the knowledge of the data subject. This principle also requires providing data subjects with several pieces of information (on the processing of their data, but also on their rights).
The purpose principle
Personal data must be collected for specified, explicit, and legitimate purposes and not be further processed in a way incompatible with those purposes. The purpose of the processing operations to be carried out must be specified in the declaration or request for opinion submitted to the HAPDP.
The principle of proportionality
Data must be adequate, relevant, and not excessive in relation to the purposes for which they are collected and further processed. The data controller must not collect more data than it actually needs. Thus, only data strictly necessary for the achievement of the specified purpose must be collected.
The principle of accuracy
The data must also be accurate and, where necessary, updated. Every reasonable step must be taken to ensure that data which are inaccurate or incomplete, having regard to the purposes for which they are collected and further processed, are erased or rectified.
7. Controller and Processor Obligations
The Law does not differentiate between the data controller and data processor.
However, the Law defines the data controller as being the natural or legal person, public authority, agency or other agency which, alone or jointly with others, determines the purposes and means of the processing of personal data.
Data controller must ensure, inter alia, that:
- data is collected and processed fairly and lawfully;
- data is collected for specified, explicit, and legitimate purposes and subsequently processed in a manner that is compatible with such purposes;
- data is adequate, relevant, and not excessive in relation to the purposes for which it was collected;
- collected data is accurate, complete;
- collected data is retained in a form that allows the identification of the data subjects for a period that is no longer than necessary for the purposes for which it was collected;
- data subjects are informed of the data processing;
- data subjects have given their consents to the data processing;
- data subjects have the right to access the data and request amendments or deletions;
- persons with access to the system can only access the data they are allowed to;
- non-authorised persons cannot read, copy, modify, destroy, or move data;
- all data introduced in the system is authorised;
- non-authorised persons will not use data transmission facilities to enter into the data processing system;
- the identities of third parties having access to personal data will be checked;
- data is backed up with security copies; and
- data is renewed and converted to preserve it.
Under the provisions of Article 5 of the Law, the processing of personal data is subject to a prior notification to the HAPDP. The notification must include an undertaking that the processing meets the requirements of the Law.
However, for certain types of personal data processing, the prior authorisation of the HAPDP is required. This is particularly the case for the processing of personal data relating to genetic, medical data, and scientific research.
Transfer of a data subject's personal data to a third country is allowed if the country guarantees to individuals a sufficient level of protection in terms of privacy and fundamental rights and liberties.
Prior to any transfer of personal data to a third country, the data controller must inform the HAPDP.
Articles 40 and 41 of the Law outline that the data controller must create an annual report for the HAPDP regarding personal data which is stored within the period, as fixed by the HAPDP, in relation to the purposes for which each type of processing activity was carried out.
There is no provision in the law relating to the appointment of a data protection officer.
However, Article 12 of the Law pertains to the designation of the personal data protection correspondent, which is defined in Article 1 as the person designated by the company carrying out the processing of personal data, to whom data subjects or interested persons may address any queries.
Article 12 of the Law continues to state that the correspondent must possess the required qualifications to carry out their duties and be able to make a list of processing activities immediately accessible for any person requesting the same. The correspondent is exempt from any sanction on the part of the employer resulting from the carrying out of their duties.
Furthermore, the data controller's designation of a correspondent must be notified to the HAPDP and, in the event of failures to carry out their duties, may be discharged by request, or after consultation, from the HAPDP.
According to Article 16 of the Law, personal data must be kept for a period of time necessary to fulfil the purpose for which they were collected or processed.
The Law does not specify the form of the relationship between the data controller and the data processor. Article 20 of the Law states that when the processing of personal data is carried out on behalf of the data controller, the latter must choose a subcontractor who provides sufficient guarantees for the protection and confidentiality of this data.
However, we assume that a written contract must be the basis of the relationship between the data controller and the data processor and that contract must contain provisions relating to confidentiality.
8. Data Subject Rights
Right of information
Pursuant to Article 26 of the Law, the data controller must inform the data subject of:
- the identity and, where applicable, that of its duly authorised representative;
- the specific purposes of the processing for which the data is intended;
- the categories of data concerned;
- the recipient(s) to whom the data may be communicated;
- the possibility of refusing to appear on the file;
- the existence of a right of access to data concerning the person and a right to rectify this data; and
- the possibility of any data transfer to a third party.
Right of access
Pursuant to Article 27 of the Law, the data subjects can obtain from the data controller the following:
- information allowing to know and dispute the processing of personal data;
- confirmation of whether their personal data forms part of the processing;
- a copy of the data subject's personal data, as well as any available information on the data's origin; and
- information relating to the purposes of the processing, the categories of personal data processed and the recipients or categories of recipients to whom the data are communicated.
Under the provisions of Article 29 of the law, any natural person who can prove their identity may require the data controller to rectify, complete, update, block, or delete, as the case may be, any personal data concerning them that is inaccurate, incomplete, ambiguous, out of date, or whose collection, use, communication, or storage is prohibited.
Under the provisions of Article 31 of the Law, the data subject shall have the right to obtain from the controller the erasure of personal data relating to them and the cessation of the dissemination of such data, in particular with regard to personal data which the data subject made available when they were a minor, or for one of the following reasons:
- the data is no longer necessary for the purposes for which they were collected or processed;
- the data subject has withdrawn the consent on which the processing is based or where the authorised retention period has expired and there are no other legal grounds for processing the data;
- the data subject objects to the processing of personal data relating to them where there is no legal ground for such processing;
- the data processing does not comply with the provisions of this Law; or
- for any other legitimate reason.
Right to object
In light of Article 28 of the Law, any data subject has the right to:
- oppose the processing of their personal data;
- oppose the processing of their personal data for prospecting purposes; and
- be informed before their personal data is communicated to third parties.
There are two types of sanctions for non-compliance with the Law, those pronounced by the HAPDP and those pronounced by the judge.
Sanctions from the HAPDP
The HAPDP has the following administrative and financial sanctions:
- to issue a warning to the data controller who does not comply with the obligations of the Law;
- to issue a formal notice to put an end to the breaches within a fixed period;
- to issue a provisional withdrawal of the authorisation granted by HAPDP; and
- to issue a permanent withdrawal of the authorisation.
The amount of the financial penalty is proportional to the gravity of the breaches committed and to the benefits derived from this breach.
Sanctions from the judge
In case of breach of the Law, a judge can apply sanctions ranging from a prison sentence of three to five years and a fine of XOF 20 million (approx. €30,490) to XOF 40 million (approx. €60,980).
We are not aware of any notable enforcement decisions regarding data protection in Niger.