Unsolicited messages: Appeal court awards damages against MTN

Granting unknown persons and organisations access to a subscriber’s telephone line by MTN for the purpose of sending unsolicited messages to the line is a violation of the subscriber’s right to privacy, the Abuja Division of the Court of Appeal has ruled.

A three-man bench of the Court of Appeal led by Justice Tinuade Akomolafe-Wilson, unanimously held in its judgment that the said MTN’s act was a violation of the subscriber’s right to privacy guaranteed under section 37 of the 1999 Constitution.

Justice Emmanuel Agim, who prepared the lead judgment of the Court of Appeal, held that innumerable text messages sent without the consent of the subscriber was a violation of the subscriber’s fundamental right to privacy of his telephone conversations, correspondence, his person, telephone line and telephone message inbox.

Justice Agim held, “By giving those unknown persons and organisations access to the respondent’s MTN GSM phone number, to send text messages into it, the appellant violated the respondent’s fundamental right to privacy guaranteed by section 37 of the Constitution which includes the right to the privacy of a person’s telephone line.

“The said section 37 of the 1999 Constitution provides that, ‘The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic conversations is hereby guaranteed and protected’.

“The innumerable text messages without his consent at all times is a violation of his fundamental right to the privacy of his telephone conversations, correspondence and his person and telephone line and telephone message inbox.”

Justice Agim also held that MTN’s act violated Rule 14(1)(b), (2) and (3) of the General Consumer Code of Practice Rules and the Consumer Code of Practice Regulations 2007, both of which were regulations made on the strength of section 70 of the Communications Act.

The two regulations, according to Justice Agim, ‘require the appellant (MTN) to maintain a directory enquiry facility containing information of all its subscribers in Nigeria and allow access to same by third parties but subject to the prior notification of the subscriber’.

Justice Akomolafe-Wilson who headed the court’s three man-panel and the another member, Justice Olabisi Ige, agreed with the lead judgment delivered by Justice Agim.

The Court of Appeal in Abuja delivered the judgment on May 12, 2017, but its copy was made available to our correspondent on Sunday.

The judgment was on an appeal with number, CA/A/689/2013, and filed by MTN against the earlier verdict of Justice Adeniyi Ademola of the Federal High Court in Abuja.

The appeal court’s verdict affirmed substantially the judgment by Justice Ademola who, had held that MTN’s defence filed in response to the alleged breach, was evasive.

Justice Ademola had, in his judgment delivered on May 15, 2013, awarded N5m as exemplary and aggravated damages against MTN, but the Court of Appeal reduced it to N3m on the grounds that no explanation was given by the lower court for the award.

But the appeal court affirmed part of Justice Ademola’s decision to the effect that ‘the award of 10 per cent interest on the judgment sum (N3m) from the date of the judgment until the judgment sum is fully and finally paid to the respondent is hereby affirmed’.

A lawyer and MTN subscriber, Mr Godfrey Eneye, had filed the suit marked FHC/ABJ/CS/431/2012 before Justice Ademola, contending that MTN had violated his rights by revealing or permitting his private line registered with the network provider to be accessed by other organisations and persons ‘who sent unsolicited, irritating and annoying messages to the said line’.

He had stated in his suit before the Federal High Court that, “The respondent (MTN) offers and provides a bulk SMS message service to customers and permits the sending of bulk messages by individuals, organisations and other bodies through their network upon certain specified conditions agreed between the respondent and the respective subscribers to the said bulk SMS service.”

In response, MTN had claimed that it did not disclose the subscriber’s phone details to third parties.

“The appellant did not show or even suggest that it notified the respondent before giving access to his line to the senders of the text messages,” Justice Agim ruled.