Ict – the aftermath of recent kidnaps
On an unprecedented scale, new communication systems and digital technology have made dramatic changes in the way we live. Business owners and end users are increasingly using technology to create, store information and transmit value in electronic form instead of traditional paper documents, tender and contracts. A revolution is occurring in the way people transact business and it shows no signs of abating any time soon.
Although people are aware of these advantages in Nigeria, and indeed use these services frequently outside of her shores, they are still somewhat reluctant in some cases, to conduct business or conclude any transaction in the electronic form due to the apparent lack of appropriate legal framework to govern such transactions in Nigeria.
E-Commerce consists of buying and selling of products or services over electronic systems such as the internet and other computer networks. Local and foreign trades through the medium of e-commerce have grown rapidly in the past few years particularly in the developed countries of the world. E-commerce facilitates and enhances the rate at which value is exchanged such that a multi-million dollar transaction can be concluded with just the click of a few buttons.
Nigeria, being the acclaimed largest economy in Africa, is yet to assume a leadership role in the area of electronic commerce, and is as such unable to reap the dividends otherwise available to a well regulated e-business environment. However, the only aspect of e-commerce that has gained some ascendancy in Nigeria is in the area of e-banking. On the one hand, it can scarcely be denied that the way and manner in which ICT has been deployed and assimilated by financial institutions and companies in Nigeria is very commendable. Currently in Nigeria, there are several well-known local online sites that utilize e-commerce. However, the existing laws do not seem to have kept pace with technological advancement and practices. In fact, beyond the basic laws of contract, there is little or no legal framework in Nigeria that deals with the commercial aspect of e-commerce transactions and also the unique technological issues that arise therefrom.
When conducting business on the various ICT platforms, purchasers are faced with a number of risks – real or imagined, as a result of the absence or lack of appropriate legal framework to protect their rights in the event of exploitation or fraud. A number of legal issues which have already been taken care of in more developed countries are still being grappled with in this jurisdiction where internet trading is nascent. These issues include Data Protection, Formation of Contracts on Internet, and Legal means of effecting payment, Jurisdiction of Courts in “cross border” transactions, and Cyber Crime.
First of all, there are really no express data protection laws in place that protect individuals’ confidential information disclosed in the course of engaging in e-commerce transactions. Nigeria indeed has no privacy and personal information laws beyond the Constitutional right to privacy, which is necessarily limited when viewed against the wide range of misuse of data and personal information occasioned by the proliferation of ICT. This gap is even more prejudicial in that information published on the internet is not just open to a national, but a worldwide audience.
Also, the determination of the moment when a legally binding contract can be said to have come into existence on internet transactions; thus giving rise to the existence of rights and duties as between the parties, has been one of the contentious issues in e-commerce. In contrast, traditional commercial transactions seem to have overcome these knotty issues through the elaborate common law and statutory rules that govern such transactions. However, do these same set of rules adequately provide for consummation of electronic contracts?
Making payment for goods and services over the internet poses unique challenges due to the fact that the contracting parties may be thousands of miles apart. The buyer cannot personally guarantee the safety of the payment for goods over the internet, but only acts on the “assurance” of an internet security provider, who is, in many respects, alien to the main transaction, and whom the buyer may not even be aware of. Transactions consummated online with digital cash pose the risk of being duplicated by computers or diverted. Against whom does the buyer then have recourse, the seller or the security provider?
Again, the issue of jurisdiction and choice of law is a very important one in e-commerce. The question has always been which court assumes jurisdiction in resolving a dispute arising from a contract between parties, where they may be residing in different jurisdictions with different legal systems.
Cybercrimes also pose serious threats to e-commerce and have made internet transactions, where adequate safeguards are not in place, insecure and vulnerable to manipulations by fraudsters who are not parties to such transactions. Internet crime means the commission of unlawful acts using the computer or devices with internet connectivity either as a tool or a target or both. Cybercrime is not defined in any Nigerian Legislation. However, cybercrime strictu sensu may be distinguished from the substantive crime itself, such as stealing, obtaining by false pretense, etc.
A recent crime committed in Lagos through the use of Internet platform was the notorious case of a housemaid, who disguised her identity as “Mary Akinloye”. The so-called “Mary” was hired as a nanny through a popular online trading portal, by a family in Lagos, in need of such services. Mary kidnapped the three kids only a day into her job as the family nanny. According to the parents of the three little boys who were kidnapped from their home in Surulere, Lagos, the woman (i.e. the nanny) was hired from the online platform, after she responded to an advert they placed on the site. The three boys have since been rescued and the nefarious nanny apprehended and taken into police custody. After her arrest, the nanny confessed her true identity and also revealed that she was part of a kidnapping ring. After the incident, the online trading platform issued a statement absolving itself of liability on account of the disclaimer notice posted on their site portal urging users to take precautionary checks when using the platform. Had this alleged crime been committed in other jurisdictions with more robust legal frameworks for e-commerce, this e-commerce platform may still have been culpable on other grounds despite the disclaimer notice; especially if there is a strict liability regime for any infractions by the operators or service providers of e-commerce.
Legal and Regulatory Framework of ICT in Nigeria
As is perhaps now evident, e-Commerce is still very nascent in most developing countries and Nigeria is not excluded. At present, there is no robust legal and regulatory framework for e-commerce in Nigeria.
On the international stage, a major recognition of e-commerce, and regulation of its unique incidences, commenced with the adoption of the UNCITRAL Model Law on e-Commerce in 1996. This Model Law has since been largely accepted by the majority of developed countries, or adapted to suit their local features. Some emerging economies like India have since passed into law the Information Technology Act, 2000.
In Nigeria, a giant stride has been made in our rules of evidence to codify the admission of electronically generated evidence by banks provided such evidence is able to satisfy other technical requirements of the law which are relevancy and admissibility.
Also, laudable efforts at regulating e-commerce-related activities are still at the stage of Draft Bills before our National Assembly. The relevant bills are the Nigerian Bill on Cyber Crimes and the Electronic Transactions Bill, which is modeled on the UNCITRAL Model Law on e-commerce. The Bill provides for the validity of contracts, matters of evidence, electronic signatures and payment systems, amongst other issues relevant to prevention of cybercrimes.
A non-exhaustive list of relevant bills currently before the National Assembly includes:
Cyber security & Information Protection Bill of 2010
Electronic Transactions Protection Bill of 2010
National Internal Security Bill of 2009
Security Communications Interception and Monitoring Bill of 2009
Critical Infrastructure Protection Bill of 2009
Computer Security & Protection Bill of 2009
Electric Commerce (Provision of Legal Recognition) Bill of 2008
Electronic Fraud (Prohibition) Bill of 2008
Nigerian Antitrust(Enforcement, Miscellaneous Provisions etc) Bill of 2008
Cyber security and Data Protection Agency (Establishment) Bill of 2008
Draft legislation on ICT has been pending for far too long before the National Assembly. It is recommended that the National Assembly should be pressurized or lobbied into passing the relevant bills into laws as a means of further stimulating and even simply coping with the growth of ICT in the country. Without an effective and robust legal and institutional framework, e-commerce is not likely to attain its full potential in Nigeria. The lawmakers need to act fast so as to save consumers of goods and services traded on various technological platforms, from the attendant risks associated with e-commerce transactions. Having in place a legal framework would also increase investors’ confidence in the ability of the Nigerian Legal system to deal with legal issues arising from e-commerce transactions.
Though the fundamental changes made in our Evidence Act in relation to the admissibility of electronically generated evidence are commendable, we should not lose sight of the fact that the Evidence Act is just a codification of procedural rules that solely deal with the method of admissibility or proof of electronic generated evidence. We require substantive legislation that will deal squarely with cybercrimes, validity of contracts entered on the internet, payment systems, amongst other weighty issues which have thus far hindered the spread of e-commerce as a viable and even preferred mode of transacting business for the 21st century.
Tolulope Aderemi