IT LAW IN NIGERIA

  

IT IN NIGERIA: AN OVERVIEW

The IT as a global data exchange system has revolutionized not only everyday life, but also transmission of data and information across the globe. Like the rest of the world, Nigeria is increasingly relying heavily upon the Internet for educational, business and social activities. Indeed, according to the Nigerian Communications Commission, the total amount of Internet subscription for GSM (Global System for Mobiles) and CDMA (Code Division Multiple Access) networks in Nigeria stood at 26.6 million as at July 2012: GSM networks had 26.3 million while CDMA networks had 239,984.

IT Law is a field of law that deals with underlying legal issues of Internet governance. As a relatively new legal field, Internet Law spans a diverse area of activities, including many aspects of intellectual property (IP) and telecommunications regulation and e-commerce, as well as state responsibility for cyber-attacks (cyber terrorism), international online privacy protection and many aspects of employment contracting, antitrust and trade regulation, privacy law, international trade, consumer protection, healthcare, criminal law, taxation, financial/banking regulation and securities law

The IT, as stated above, has revolutionized not only everyday life, but also shown the need to redefine many key legal terms which have been so far considered as well formulated and sufficient to describe and explain international relations. In a relatively short time, it has become an essential instrument of educational, economic political and social functioning. In fact, according to the 2013 figures released by International Telecommunications Union (ITU), 2.7 billion people – almost 40% of the world’s population – are now online. The increase in the number of IT users across the globe, and the growing awareness of the educational, social, and economic impact of the Internet on society has brought the question of governing the Internet into sharp focus.

Nonetheless, with the IT now incorporating television, radio and telecoms services in a new, interactive way, conveyance services over the internet must, it seems, be properly regulated to take account of this development. More so that this convergence is geared towards transforming how knowledge and information are generated, disseminated and collaborated on to create value in the society.

4.2.        RATIONALE FOR REGULATING THE IT

One reason to regulate the IT could be to maintain social values, protect morality and safeguard social standards. Efforts to uphold morality sometimes leverage legal concepts of “indecency” and “obscenity”, whose definitions vary widely from country to country. For instance, South Korea banned content dealing with euthanasia and hacking. Legislation in India blocks sites that portray a prurient interest in the details, and Australian law prohibits sites that include “information about crime or drug use”. Saudi Arabia bans Internet content on “"immoral" (mostly pornographic) materials and materials promoting Shia Ideology, and Uzbekistan prohibits accessing materials critical of the country’s president or based on religious extremism. In Nigerian context, by the provisions of the Communications Act in the formulation of licensing procedures, issuance of communications licences and preparation of licence conditions and terms (sec 33) and the NCC’s Guidelines for the Provision of Internet Services (sec 5), ISPs are prohibited from disseminating, causing to be disseminated or allowing to be accessed through its network, any information that directly, or indirectly, casts aspersions on a religious, political, ethnic group or race, any pornographic material, any obscene articles or any seditious material.

The second reason for IT regulation is “national security.” A number of countries used the 911 terrorist attacks, as well as argument about the potential threat of terrorist attacks, to justify tighter restrictions on Internet content. Anti-terrorist legislation often allows governments considerable latitude in monitoring and censoring Internet content viewed by their citizens. For example, in Nigeria, the Terrorism Prevention Act 2011 (as amended) (“TPA”) provides, amongst other things, for intelligence gathering by law enforcement agencies through the lawful interception of communications (section 26 (1) of TPA). The judge could also require a telecoms provider to intercept and retain specified communication received or transmitted by that service provider, or authorise the relevant law enforcement agency to enter any premises and install and subsequently remove any device with which a communication or communications of a specified description may be intercepted and/or retained, for purposes of intelligence gathering (Sec. 15(10)). Again, para 6 of the Guidelines for the Provision of Internet Service published by the National Communications Commission (NCC)’s requires ‘all licensees providing internet services or any other related internet protocol based telecommunications service’ to cooperate with ‘all law enforcement and regulatory agencies investigating cybercrime or other illegal activity’ and to ‘provide any service related information requested by the NCC or other legal authority, including information regarding particular users and the content of their communications.’

The third reason is that IT affects many domains, such as individual rights, public liberties, property rights, economic competition, market regulation, conflict management, security and the sovereignty of states. And given the functions of the Internet, including exchanging information or sending e-mails, online shopping, or downloading and rendering accessible film and music files, there is, therefore a need to have a regulation of information flows to prevent the loss of these functionalities, and maintain the efficiency and the capacity to extend the network to new services and new players of the Internet. Moreover, laying down appropriate international legal principles governing the Internet as a whole could help facilitate the protection of users’ rights and formulate straightforward and uniform responsibilities of their relevant groups.

However, it should be borne in mind that the right to free Internet access is perceived in some quarters as an emanation of the right to free speech and free communication. To the extent that this right to Internet access has already found its way into the legislation of many countries, including Finland (Communications Market Act 393/2003 and the Decree of the Ministry of Transport and Communications on the Minimum Rate of a Functional Internet Access as a Universal Service732/2009) and Estonia (Public Information Act, 2000).

4.3.        LEGISLATIVE FRAMEWORK FOR THE OPERATION OF THE IT SERVICES

Countries around the world are increasingly taking greater action to exercise their powers over online activities through enacting and executing national legislation.

In Nigeria, IT services are covered by section 32 of the Nigerian Communications Act 2003 in relation to the granting of license to the Internet Service Providers (ISPs) and Web site operators. Also the Consumer Code of Practice Regulations, 2007, made pursuant to section 106 of the 2003 Act and the functions of the Commission as identified in Sections 4 (1) (b) and 4 (1) (p) of the Act, governs the provision of services by licensed Internet operators in Nigeria and related consumer practices.

Also, all ISPs and any other providers of Internet Protocol based telecommunications services in Nigeria are required to comply with the Code which sets out a minimum set of requirements and the minimum standard for the provision of services and related consumer practices applicable to Licensees. A breach of the Code by any licensee attracts fines, sanctions or penalties, including any penalties that may be determined by the NCC under section 14 of the Nigerian Communications (Enforcement Processes, etc.) Regulations 2005.

4.4.        REGULATION OF THE IT

In many parts of the world, the current approach to regulating IT is filtering which involves limiting access to certain Internet content. Even so, the regulation of the IT may be conducted by three groups of entities: 1) Internet content providers (ICPs), 2) Internet service providers (ISPs), also referred to as Internet Access Providers (IAPs), and 3) end users. An Internet content provider is, most often, the author of information or data placed online. An Internet service provider is an entrepreneur who offers Internet connectivity (many ISPs are telecommunications companies). End users are the consumers of the content being provided.

In Nigeria, the National Communications Commission (NCC) – the telecommunications regulatory body – is the regulator of IT. Pursuant to Section 70(2) of the Nigerian Communications Act  2003, the NCC has published the Guidelines for the Provision of Internet Services on the liability of ISPs for the content of their subscribers and when and how the Commission can intervene in the fixing of tariffs and rates by service providers for a range of Internet services.

Under section 5 of these Guidelines, which can be revised by the NCC at any time by publishing replacement Guidelines (section 19), all the ISPs are prohibited from disseminating, causing to be disseminated or allowing to be accessed through their network, any information that directly, or indirectly, casts aspersions on a religious, political, ethnic group or race, any pornographic material, any obscene articles or any seditious material. Again, all ISPs are required to comply with the earlier mentioned Consumer Code of Practice Regulations 2007 that governs the provision of services by licensed telecommunications operators in Nigeria and related consumer practices.

Although the IT had since become widely accessible to the world since 1994 when researchers at the European Centre for Nuclear Research in Switzerland created the World Wide Web (WWW), it was not until 2004 that the Nigeria first undertook an attempt to regulate Web content. At that time, the former President Olusegun Obasanjo set up a committee called the Nigeria Cyber Crime Working Group (NCWG) to handle cyber matters until the National Assembly could pass the enabling legislation to combat the threat posed by Internet crimes. Of course, since the NCWG was set, there have been many Internet-tailored bills introduced unsuccessfully in the National Assembly to address the cyberspace crimes to wit:

(i)             Computer Security and Critical Information Infrastructure Protection Bill 2005;

(ii)           Cyber Security and Data Protection Agency Bill 2008;

(iii)          Electronic Fraud Prohibition Bill 2008;

(iv)          Nigeria Computer Security and Protection Agency Bill 2009;

(v)            Computer Misuse Bill 2009; and,

(vi)          Economic and Financial Crimes Commission Act (Amendment) Bill 2010

At the moment, a new Bill, Computer Misuse and Cybercrimes Offences Bill recently passed second reading in the National Assembly. The Bill, though came on the heels of the gruesome murder of a young lady, Cynthia Osukogu, in Lagos last year by friends she met on Facebook, makes provisions for offences and penalties relating to computer misuse and cybercrimes in the country. And when passed into law, the Bill is expected to provide the needed framework for the prevention and investigation of crimes committed via the Internet and other computer networks.

4.5.        CHALLENGES IN THE REGULATION OF ONLINE ACTIVITES

(a)  Jurisdiction

The term "jurisdiction" refers to the power of a court to judge a particular case. The question of jurisdiction is important, because a judgment rendered by a court lacking personal jurisdiction over a defendant is void. Thus, a court can only act legally and validly when it has jurisdiction over the person and the subject matter of the dispute brought before it. Since each country has the exclusive jurisdiction of the court within its territory, the court will only assert jurisdiction over a person if the person is physically present in the territory of that country. Even where a country has obligation to turn over a criminal to the requesting entity, the process is usually an expensive and long, drawn-out process. Moreover, laws differ from one country to another; what is legal in one country may not be so in anther. So jurisdiction in cybercrimes is a tricky issue; the law enforcement agencies can only enforce the law within their jurisdictions.

(b)  Extradition

This is a formal surrender of a person by one nation to another for prosecution or punishment. Extradition is normally considered a national act, exclusively controlled by the government of the country under its constitutional power to conduct foreign relation and to make treaties. In the absence of a treaty obligation or bilateral agreement, international law imposes no duty upon a country to deliver up a person under its control and within its boundaries. Even where there is a treaty obligation, the conduct being investigated for extradition purposes must be a crime under the laws of the country requesting assistance and the country whose assistance is required. Because of rapid advancements in computer technology, laws governing cybercrimes in many countries often struggle to keep pace with these advancements, thereby creating havens for bad actors, and stymieing (frustrating) investigation of cybercrime cases.

(c)   Acquisition of evidence to support cybercrime investigations

In many countries around the world, criminal investigations are generally prosecuted by the Attorney General or Director of Public Prosecution. In the context of cyber-related crimes, the primary methodology for acquiring digital evidence within a particular jurisdiction would be by a search warrant or other associated orders. This methodology may be difficult to fashion out because of the nature of Internet-connected computers. That is, getting consent to acquire usable information from the data created by the user or manipulated by a locally-installed software programme can be murky.

(d)  Enforcement of Conflicting Laws

The greatest challenge in combating cybercrime is when the countries have conflicting laws concerning the matter at hand. Conflicts can arise where an activity is viewed as legal in one country but it is illegal under another country’s criminal laws. For example, the definition of ‘indecent’ materials in the United States would let pass materials that would be deemed off-limits in countries like Saudi Arabia or other parts of the Middle East. Again, Nazi propaganda is illegal in France and Germany, yet it is not in the United Kingdom and United States. Considering the cultural differences reflected in national criminal legislation, it is difficult to comply with conflicting laws with respect to acquisition of digital evidence by law enforcement agents across country lines. Therefore, differences in domestic legislation, especially when exercised in court practice, result from different interpretation of the same provisions and jurisdictional competence by national courts.

4.6.        STEPS TO OVERCOME THE CHALLENGES OF REGULATING THE IT

(a)  Countries must harmonise their laws on what constitutes online criminality;

(b)  Policing internet filth is not a threat to civil liberties. It is a prerequisite for civilisation;

(c)  Blocking of blacklisted content by internet service providers; and

(d)  regulating electronic interactions at international level, international law may enable us to apply already existing mechanisms (appropriately adapted) to the challenges of cyberspace. The bottom line is that even right now a certain, basic common ground for some of the most widely condemned practices can be found: the prosecution of child pornography or human trafficking seems to be present in most national criminal codes.