CHAPTER ONE
GENERAL INTRODUCTION
The rate of cybercrime has gone up considerably in the last 10 years since the inception of the internet and digital age.in Nigeria, the national security adviser (NSA) estimated the annual cost of cybercrime to the country’s GDP is 0.08% which represents N 127 billion.[1] There are various kinds of acts which would constitute an offence in the newly promulgated cybercrime Act 2015 such as: unlawful access to computers, unlawful interceptions of communications, unauthorized modification of data, misuse of data, system interference, intercepting electronic messages, emails, e-money transfer, tampering with critical infrastructure, computer related fraud, computer-related forgery, among others, as offenses that are punishable under the Act. Theft of electronic devices, electronic signature, child pornography and related offences, racism and xenophobic offences are also punishable under the Act. It also provided for cyber-stalking, cybersquatting and cyber-terrorism as offences; there are actually many valid reasons for the need of cybercrime laws in Nigeria. The study takes a subjective look at the attributes of cybercrime laws and certain challenges the cybercrime act and laws face such as: what constitutes a cyber-crime, who do you call when a cybercrime occurs, who enforces this act-the police or a special force, and how prepared are these officials?. It also takes a subjective look at certain controversial provisions of the cybercrime act of 2015 which are: cybercrime act and the registration of cybercafés,mandatory winding up and forfeiture of assets, lawful interception of communication, cyber security fund, cancellation of international passports.
During the course of this research, reference and credit would be given to each author that his or her work is used in this research to add to existing
This research work would raise certain contentious issues with the provisions of the cyber-crime act 2015, the enforcement mechanisms, officers, and how competent these officers are in combatting cyber-crime in Nigeria. It would also look at the scope, the significance, and research methodology used.
- BACKGROUND OF THE STUDY
Humans over the past years and decades have evolved from one stage to another stage in life, always coming up with different and better ways in carrying out their activities or daily life which they refer to as development. This can be traced back to the Stone Age down to the renaissance-the industrial revolution or the Iron Age.[2] Humanityhas passed through three (3) major stages of evolution which are; the hunter-gatherer, agricultural, and technological stage.[3]
Human developments or improvements in information and communication technology (ICT) has led to the information being represented into electronic or digital format which has led to the rapid demand of free, open and global access to information by its users.
However, this shift from the ancient or traditional means of information communication has now provided a platform for criminal activities on the internetcoupled with the fact that laptops, computers, and internet connectivity is becoming more affordable to the populace. Ever since the inception of the internet and Nigeria’s participation in this global phenomenon, there has been a rapid increase in the amount of crimes being committed on the internet through the use of various platforms such as Social media, emails, dating websites, online stores, Mobile Banking, Trade and service websites, and social engineering. The society over the past years have become more increasingly dependent on new information technology to carry out businesses through online services such as; Jumia, Konga, Wakanow, E-bay, Amazon and Alibaba, manage industrial activities, engage in personal communication through social media sites such as Facebook, Snapchat, WhatsApp, Pinetrest, Badoo, Tinder, Twitter, LinkedIn and many others. These technologies and information allow for enormous gain and efficiency, productivity and other benefits they create a vulnerability to those who wish to take an advantage of the system and new situations.[4]
Cyber-crime is now prevalentin the Nigerian society, of which the most common is fraud. this is as a result of the high rate of unemployment and other social factors which keep the youths among the Nigerian population Idle coupled with the ‘Get Rich Quick syndrome’. This makes the youth explore their skills in the cyber world and how they can benefit from it and not be caught knowing that there are no proper enforcement mechanisms put in place in Nigeria.
The cyber-crime Act, 2015 is yet the most recent form of legislation combatting cyber-crimes in Nigeria and this study aims to analyze the key provisions of this Act, the contentious provisions, as well as to provide possible solutions and recommendations to combatting these cyber-crime issues in Nigeria. The study would also bring to light the various kinds of cyber-crime perpetrators, their mechanisms, and tools.[5]
- STATEMENT OF PROBLEM
This research work will trace the history and uprising of cybercrimes such as ATM Fraud, piracy, hacking, email Scams etc. its effect on the Nigerian economy, its effect on Nigeria’s reputation in the global international system, the harsh effect of the cyber-crime act 2015 on cyber cafes operating in Nigeria, the cyber security fund; its use and management. The study takes a subjective look at the attributes of cybercrime laws and certain challenges the cybercrime act and laws face such as: what constitutes a cyber-crime, who do you call when a cybercrime occurs, who enforces this act-the police or a special force, and how prepared are these officials?
- OBJECTIVES
The principal purpose of this study is to evaluate the cybercrime law in Nigeria with the main focus being the recently enacted Cyber-crime Act 2015 for the regulation of cybercrime activities in Nigeria. The study takes a subjective look at the attributes of cybercrime laws and certain challenges the cybercrime act and laws face such as: what constitutes a cyber-crime, who do you call when a cybercrime occurs, who enforces this act-the police or a special force, and how prepared are these officials?. Further analysis will amongst other things:
- Discuss the Nature and Types of Cybercrime;
- Assess the controversial provisions of the cybercrime Act 2015;
- Examine and analyze key provisions of the Cybercrime Act 2015;
- Suggest and recommend effective ways and methods on how cyber-crimes can be tackled in Nigeria.
- SCOPE OF STUDY
This research work will focus on the present and future problems of cybercrime. The scope of this study or work includes but is not limited to; an overview of the cyber-crimes in Nigeria, the recently enacted cybercrime act 2015. An attempt would be made to analyze the cyber-crime Act 2015 and the international perspective and cooperation relating to the cyber-crime act 2015.
- SIGNIFICANCE OF THE STUDY
The significance of this study cannot be overemphasized. This is because this study would be of benefit to every internet user or subscriber; those who constantly carry out business, educational, Cyber cafés and financial transaction activities on the internet. The study is aimed at analyzing the recently enacted legislation on cyber-crime laws along with its shortcomings and challenges in combatting cyber-crime activities in Nigeria. The government, law and policy makers would also find this study very useful and handy as they attempt to come up with feasible and effective solutions to this rising issue of cyber-crime in Nigeria. Similarly, this work would further support law enforcement agencies with their aim to stopping cyber-crimes by giving suggestions and recommendations on ways in which they can enforce and equip themselves to be ready to combat cyber-crimes in Nigeria. This study would also help Law researchers and even those in related discipline in their future research.
- RESEARCH METHODOLOGY
During the course of this research, the doctrinal research method would be relied on for this research work. The research will combine both primary and secondary sources of materials. The relevant statutes and case laws would be consulted to assist in this research work.
The nature of this study also demands that much reliance will be placed on online materials, textbooks, journals, and articles written in this area.
- LITERATURE REVIEW
- What is Crime?
With the aim of understanding and finding out the true meaning of cybercrime and its laws in Nigeria, the definition, elements and scope of crime would be evaluated.
Sir Carleton Allen writes;
“Crime is a crime because it consists in wrongdoing which directly and in serious degree threatens the security or wellbeing of the society.”[6]
This definition by Sir Allen explains why certain acts have been made crimes by the judicial decision or the legislative arm. These acts that have been made crimes do not necessarily reflect the present state of affairs. Meaning that a crime may remain a crime long after that act or crime no longer threatens the public or society. Hence Allen’s view describes to us what he thinks ought to be criminal than what is criminal.[7]
Some crimes however, may also be civil wrongs or torts such as theft, or criminal damage for which the affected individual may claim damages and compensation.[8]
A crime is any act or omission that violates a law which results in a punishment. Punishments can range from the payment of a fine to incarceration in jail. The level of the offense or crime will usually be set in proportion to the severity of the crime.[9]
Kadish defines crime as any act or omission to act which is prohibited by law enacted for the protection of the public at large and the judiciary is to punish the doer of a crime if found guilty of the offence as initiated by the prosecution attorney of the state. Kadish distinguishes between a “public crime” to be a public wrong whereas a private crime is a “civil wrong” and tort to an individual.[10]
- ELEMENTS OF CRIME;
Preliminary element; before the state can attempt to prove that the defendant is guilty of the alleged crime, they must first determine (i) that there has been an occurrence of some injury which constitutes a crime, and (ii) that somebody’s criminal act is responsible for the injury. In a cybercrime case, the state would have to prove that there was an injury arising from the cybercrime act and that such cybercrime act was carried out by the defendant.[11]
There are two(2) elements that are necessary for the prosecution to prove during a criminal trial in order for the alleged criminal to be guiltyThese elements are known as the ‘Actus Reus’-an act (a Prohibited conduct), and the ‘Mensrea’–this is the mental element of a guilty mind or intention. For example, if a person intentionally and without lawful excuse (such as self-defense) strikes another which leads to his harm or death, The prohibited conduct is the striking and the mental element, or guilty mind, is the intention to strike/hurt/injure.[12]‘Actusreus’ translates as “to do an act” from Latin, i.e. the occurrence of the criminal act or an unlawful omission of an act. It is the act which, in combination with mensrea constitutes a crime. For example, the crime of theft requires physically taking something (the actusreus) coupled with the intent to permanently deprive the owner of the object (the mensrea).the act of a cybercriminal deceiving another on the internet to transfer certain amount of money for false reasons or under false pretenses which would amount to a criminal act of fraud.
‘Mensrea’ translates as ‘to have in mind” from Latin. It is an important element of any crime because it relates to the need to determine whether the defendant held the sufficient state of mind to have the intent to commit the particular crime in question with the ‘guilty mind’. – 1) According to the Hyamv DPP[13] case it relates to the idea that there is sufficient “criminal intention”. Sweet v. Parsley[14] caseillustrates that mensrea is required when the offence is a true crime as oppose to a normative offence.[15]
Furthermore, there are two additional elements which are needed to prove and these are; Causation, and Social Harm[16]
Causation basically just means that the prohibited act committed caused or resulted to the end harm.
In proving social harm, The State must prove that the defendant performed a physical act that caused social harm with the intent to bring about that harm.
- What is Cybercrime?
There is no definite or generally acceptable definition of ‘cybercrime’ under the Nigerian law because cybercrime is a new and emerging field of criminal law which has recently been brought to light in the judicial system. There is little difference with what crime is and what cybercrime is, the major difference is the scope and the platform which cybercrime activities are carried out.
The word cybercrime is popularly used to describe the criminal activities related to cyberspace or the cyber world. Furthermore, the word cybercrime could be defined as any crime that involves computer and networks, including crimes that do not heavily rely on computers and most times the computer iseither a tool or a target or both.[17] Therefore, cybercrime covers offences involving cyberspace, computers and other electronic information storage devices, such as data interference, illegal interception, illegal access and the misuse of devices.[18]
There has also been contention from various legal scholars that cybercrimes are old crimes via the computer. That is, the cybercrime offences are known to our statutes but are now promoted and carried out through the use of computers. However, in committing them, the digital media is used as an alternative instrument.
According to Chukkol, it has been rightly observed that computers or related electronic medium like mobile phones may play a part in the commission of nearly every form of criminal activity for which penalties already exist under the existing statutes like the penal code law, the criminal code Act, Economic and Financial Crimes Commission Act.[19]
However, there is still need for a separate legislation on cybercrime with the aim of combatting, punishing, and deterring cyber criminals hence the Cybercrime Act, 2015. The foundation of criminal law in Nigeria’s legal system is that a person cannot be convicted for an offence that is not provided for in any criminal statute, legislation or enactment. Also the existing Penal code and criminal Act in Nigeria cannot be adequate or efficient in dealing with such cybercrime offences. The existing laws on crime in Nigeria did not address areas or envision issues like the jurisdiction- what happens when a cybercrime is committed outside Nigeria by a Nigerian? Who exercises jurisdiction? What courts have the jurisdiction to entertain the matter? The issue of evidence and investigation are also areas that need to be addressed. That is why there is a need for new Laws or enactments addressing these issues.
- Categories of Cybercrime
Cybercrime against Persons;
Cybercrime committed against persons or individuals would include acts such as broadcast of child pornography, harassment of a person through any electronic device or internet, cyber bullying, fraud, and sending of viruses and DDOS. Cybercrime against persons can also be looked from the angle of a violation of a right to privacy of citizens online.[20]
Cybercrime against Property;
The cybercrimes against property is one which is a notorious occurrence in the Nigerian cyberspace with acts such as intellectual property crimes (software piracy, theft of computer source code, infringement of copyright, patent, and trademark), cybersquatting, and cyber vandalism, spreading of viruses, cyber trespass and hacking.
Cybercrimes against government
The growth of the internet has led to various crimes and cyber terrorism with the aim of compromising the national security of a government to gain unauthorized access to their data and cause a number of other damages e.g. Wiki Leaks who illegally authorized files from the American government threatening to release them to the media.
Cybercrimes against the society;
Any unlawful act done with the intention of causing harm to the cyberspace or society at large, the cyber space can been used to carry out physical attacks on individuals and the society.[21]
[1]Iroegbu, ‘Nigeria Loses over N127 bn annually through cybercrimes’ This Day Live (Lagos 2016) <http://www.thisdaylive.com/index.php/2016/04/19/nigeria-loses-over-n127bn-annually-through-cybercrime/> accessed 04 January 2017
[2] Laurence Evans, ecotoa.com, ‘Civilization: Modern Cultures,’ (2008), <http://www.ecotao.com/holism/hu_mod.htm> accessed 04 January 2017
[3] Ibid1
[4] Martins, MartinsLibrary.blogspot.com, ‘General introduction to cyber-Crime effects in Nigerian sector,’ (N.D) <http://martinslibrary.blogspot.com.ng/2013/08/general-introduction-to-cyber-crime.html>accessed 04 January 2017
[5] Nigerian Cybercrime (Prohibition and prevention) Act 2015
[6] CK Allen, the Nature of a Crime in Legal Duties (Oxford: Clarendon, 1931)
[7] Smith and Hogan’s Criminal Law (David Ormerod, 13th edition, 2011)
[8], Business insider, Definition of Crime (N.D), <http://www.businessdictionary.com/definition/crime.html> Accessed 04 January 2017
[9] Legal Free Advice.com, Criminal Law, (N.D), <http://criminal-law.freeadvice.com/criminal-law/criminal-law/crime_law.htm>Accessed 04 January 2017
[10]Kadish, Criminal Law: Adaptable to courses using materials (Legalines Eight Edition 2010)
[11] Ibid 10
[12] Legal Services Commission of South Australia ,’Elements of Crime,’ (N.D), http://www.lawhandbook.sa.gov.au/ch12s03.php Accessed 05 January 2017
[13]Hyam‘v’ DPP [1955] AC 55
[14]Sweet ‘v’ Parsley [1970] AC 132
[15] Law Teacher, ‘Outline the basic elements of crime,’ (N.D),<https://www.lawteacher.net/free-law-essays/business-law/outline-the-basic-elements-of-crime-law-essays.php>Accessed 05 January 2017
[16] R.J Reeves, ’what are the basic elements of crime?,’ (2013), <http://www.mecklenburgdwi.com/what-are-the-basic-elements-of-a-crime/>Accessed 05 January 2017
[17]Olowu D, ‘Cybercrimes and the boundaries of domestic legal responses’ case for an inclusionary framework for Africa, journal of information, law and technology (JILT),’(N.D), <http://go.Warwick.ac.uk/jilt/20091/olowu> Accessed 05 January 2017
[18] K.S. Chukkol, The Law of Crimes in Nigeria ( Ahmadu Bello University Press ltd, Revised edition 2010)
[19] Ibid
[20]Harpreet Singh Dalla,‘Cyber-crime-a threat to persons, property, government, and societies’ [2013] (3) (5) International journal of advanced research in computer science and software engineering; 997
[21] Ibid
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