Impact of Supreme Court’s decision on the development of e-commerce in Nigeria: Issues and prospects (2)
Contd from last week
IT is the writer’s view that this definition is wide enough to cover all hand-held phones, ipads, ipods, ATM machines, and any other electronic device(s) that store, process and retrieve information.
With these provisions, statements from telecommunication companies showing records of call logs, text messages, etc and even receipts or records of cash withdrawals and other transactions from ATM machines, internet banking, online product purchases, on-line bill payments, e.g. of utility bills, flight bookings and tickets, and other online transaction records, should no longer present difficulty when being tendered in Court, once the stipulated conditions are met.
Also, it should now be fairly easy to deal with admissibility of evidence in cases involving libel, plagiarism and piracy committed on the internet. Admissibility of evidence in online defamation is particularly important in view of the shocking level of recklessness that some online commentators and bloggers display. Whether the provisions are sufficient to deal with issues such as authorship of on-line defamatory material; which, as between the computer printout of the alleged defamatory material and the computer-saved file copy, constitutes the original or primary evidence, etc remains to be seen in practice. With these extensive provisions, controversies about the admissibility of computer-generated evidence will largely reduce.
Perhaps it is necessary to note that section 84 of the Evidence Act 2011, is a replica of section 65B of the Indian Evidence Act, 1872 as amended, and substantially the same as section 69 of the Police and Criminal Evidence Act,1984, of England and Wales otherwise called the PACE Act.
Kubor v Dickson and E-Commerce in Nigeria
Electronic commerce commonly known as e-Commerce or e-Business consists of buying and selling of products or services over electronic systems such as the internet and other computer networks. It has also been defined as the exchange of information across electronic networks at any stage in the supply chain, whether within an organization, between businesses, between businesses and consumers or between the public and private sectors whether paid or unpaid. E-Commerce involves Electronic Funds Transfer (EFT), Supply Chain Management, Internet Marketing, Online Transaction processing, Electronic Data Interchange (EDI), Inventory Management Systems, Automated Data Collection systems, among others.
In 2014 alone, Nigeria recorded over $2 million worth of online transactions per week and close to $1.3 billion monthly. Nigeria’s e-commerce market is developing rapidly, with an estimated growth rate of 25 percent annually.
Before now, our law does not clearly recognize electronic evidence in any of its provisions. This is not surprising because all the legal concepts and indeed evidence envisaged under the Evidence Act are based on a tangible medium e.g. “document”, “object”, “picture”, etc. Section 2 of the old Evidence Act defines a document by reference to a tangible medium.
In Nigeria, financial institutions and companies have employed the use of ICT in the provision and delivery of services. Point of Sale (POS) machines and Automated Teller Machines (ATM) are now basic tools for financial transactions. Thus, the records of transaction are no longer in ledgers, but computers and other storage devices. The emergence of e-commerce and its growing popularity provoked fundamental evidential issues especially in relation to the proof of transactions conducted through the Internet.
These peculiar issues underscores the amendment of the Evidence Act to cope with the avalanche of electronically-generated evidence which is the hallmark of electronic commercial transactions. Happily, in addition to the foregoing, significant efforts at an expansive regulation of e-commerce-related activities are still at the stage of Draft Bills before the 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.
One of the keys to growth in e-commerce is connectivity. Internet access in Nigeria is getting better as Internet Service Providers (ISPs) continue to increase. Nigeria’s Internet subscriber base rose from 48.2 million in June 2013 to 67.4 million in June 2014. This represents a density of 40 percent, placing the country above the African average of around 16 percent, as estimated by McKinsey & Company.
Issues and Prospects
There is a rich well of judicial decisions from foreign jurisdictions on various aspects of electronic evidence, which will persuasively assist Nigerian courts, given the novelty of these provisions in our law.
It should however be noted that the advancement in computer technology has also brought with it some dangerous negative tendencies, warranting that courts should be very cautious in admitting electronic evidence.
Hacking of e-mail addresses, impersonation and identity theft and all manner of manipulations are now possible with computer use. Passwords can be broken into. Photographs can be manipulated.
Text messages can be sent with other people’s phone numbers. Documents can be altered. Images can be super-imposed. Diverse things are possible with scanning. Notwithstanding the laudable provisions of the law therefore, extreme circumspection and acute vigilance must still be the key words for courts in this area of evidence.
For example, it is going to be more difficult for Courts to detect forged e-documents than forged hard copies. In short, Courts are now more likely to be misled and deceived by computer ingenuity.
More importantly however, there is an urgent need now for judges to be trained not just in basic computer literacy but in serious computer intelligence, cyber-crime detection, imaging and forensic evidence. Not just Judges, but Lawyers also. This is the only way to ensure that justice is not sacrificed on the altar of electronic evidence.
A laudable provision which will help Courts greatly is to be found in Section 34 (1) (b) (i) & (ii) which is also new. It prescribes guidelines for the Courts to follow in estimating the weight to be attached to computer-generated statements, even when they have been admitted. This is a welcome safe-net in our view for the Courts, but it does not replace the need for deep Internet intelligence.
In Nigeria, significant efforts at the regulation of e-commerce-related activities are still at the stage of Draft Bills before the 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.
Interestingly, sometime in November 2014, the Nigeria’s National Assembly passed the Cybercrime Bill 2013. It is hoped that this decision of the Supreme Court will serve as a catalyst to e-commerce in Nigeria.
Olushola Abiloye is a legal practitioner with Messrs Adepetun, Caxton-Martins, Agbor & Segun (ACAS-LAW) in Lagos.
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