GSM operators often provide a service whereby the contents of Subscriber Identification Module (“SIM”) belonging to a customer, can be transferred to another SIM. This may happen where the subscriber wishes to change his phone number. The SIM is the device inserted into a GSM handset that connects the handset to the GSM provider’s network. Each SIM is therefore identified with the GSM phone number assigned to the subscriber and the SIM card itself commonly contains several telephone numbers of the subscriber’s contacts.
In the case of Takon and Another v. MTN (Nig.) Communications Ltd (FHC/CA/M32/2010) a SIM-swap went awry with dire consequences for the GSM Operator concerned, and the decision is discussed here because of its unlikely and far-reaching impact on the question of the fundamental human right to privacy of GSM subscribers. Indeed, the decision in that case underscores the importance of providers taking extra care in performing this operation so that they do not incur liability and adverse publicity.
THE FACTS
The 1st Applicant had approached his GSM service provider (the Respondent)to perform a SIM-swap for the usual charge. The Applicant sought the transference of the contents of his original SIM to a new SIM (effectively a new phone line); however, the swap was inadvertently performed with the 2nd Applicant’s SIM. The latter began receiving the 1st Applicant’s phone calls including transaction alerts from the 1st Applicant’s financial institution.
The 1st Applicant complained to the Respondent about this development, but did not get satisfactory customer service; whereupon he sued, asking for:-
A declaration that the Applicants were entitled to the exclusive use of their GSM lines (SIMs);
A declaration that the Respondents owed the Applicants a constitutional duty to ensure that the Applicants’ exclusive use of their numbers (SIMs) is not interfered with by the Respondents or third parties;
A declaration that the wrong SIM-swap was a breach of the Applicants’ fundamental rights guaranteed and protected under section 37 of the Constitution;
Damages for breach of contract.
These are the reliefs discussed in this review.
THE ISSUES
Clearly, the issues arising from this case border on the effects of a mistaken SIM-swap: is it tantamount to a breach of fundamental right to privacy? Does it amount to a breach of contract? On the first question, section 37 of the Constitution of the Federal Republic of Nigeria provides:-
“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”
We shall now consider treatment of these questions by the Federal High Court.
THE DECISION
The Court considered that several attempts had been made to settle the matter amicably before the action was brought. It then proceeded to highlight the above constitutional provision, and further relied on Article 17 of the 1996 International Covenant on Civil and Political Rights (ICCPR) and Artile 12 of the Universal Declaration of Human Rights of 1948 (UDHR) which guarantee the privacy of citizens, their homes, correspondence and telephone calls.
As the Applicants had shown that by the wrong SIM-swap, telephone calls of the 1st Applicant were received by the 2nd Applicant and financial information transmitted by the 1st Applicant’s bank meant for his sole consumption was received by the 2nd Applicant, the Court held that the fundamental right to privacy enshrined in the Constitution and the other instruments had been breached.
Instructively, the Respondent (the GSM provider) did not file a counter-affidavit to the Application; thus the arguments and evidence furnished by the Applicants were held to be uncontroverted and therefore deemed admitted – by virtue of the decision of the Supreme Court in Ogoejeofo v Ogoejeofo (2006) 3 NWLR (part 966) 205 SC and the decision in Long-John vs. Blakk (1998) 6 NWLR (part 555) 524 at 532.
Under these circumstances, the reliefs ultimately granted to the Applicants included the following:-
A declaration that the applicants were entitled to the exclusive use of their GSM lines (SIMs);
A declaration that the Respondents owed the Applicants a constitutional duty to ensure their exclusive use of their numbers is not interfered with by the Respondent or third parties;
A declaration that the interference with the Applicants’ exclusive use of their GSM numbers (SIM) by the Respondents is illegal and unconstitutional;
A declaration that the swapping of the first Applicant’s SIM with that of the second Applicant by the Respondent without their prior knowledge, consent or authorization leading to a diversion of the first Applicant’s calls and text messages to the Second Applicant is a breach of the First Applicant’s fundamental right to privacy guaranteed and protected by section 37 of the Constitution of the Federal Republic of Nigeria 1999.
A declaration that the refusal of the Respondent to perform a SIM swap for the first Applicant was a breach of the contractual obligation owed the First Applicant by the Respondents.
N550,000.00 damages for infringement of the Applicants’ fundamental rights and breach of contractual obligations; and
An order commanding the Respondents to deliver an apology in writing to each of the Applicants for the unwarranted infringement of their fundamental rights.
COMMENT
This decision establishes an important precedent; though it is not binding on courts of concurrent jurisdiction, the decision is crucial because it is rooted in a constitutional provision.
This makes the question resolved by the Federal High Court in the case under review of a fundamental nature and strong note of it should be taken by players in the telecommunications industry.
GSM operators by virtue of the nature of their services are peculiarly positioned to safeguard the privacy of citizens. This obligation will invariably extend beyond ‘telephone conversations’ (voice calls) as literally provided in section 37 of the Constitution, to data transmissions that, by the nature of the transmissions made to the 2nd Applicant’s phone from the 1st Applicant’s financial institution, could even be more sensitive than some voice communications.
It would be useful to note that the effect of declarative reliefs as the several granted in the case, is that they effectively state the position of the law, and thus become a guide to other GSM operators. Interestingly, the decision could have been avoided if the customer complaints of the 1st Defendant were heeded and resolved expeditiously by the Respondent.
It is felt that the decision of the Court in Takon v. MTN Communications Limited would serve as a guide to operators, of the crucial role they play with regard to confidentiality of subscribers’ information, as well as a warning to handle such ostensibly non-complex operations as SIM-swaps with the sensitivity that they deserve.
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