A CRITICAL ANALYSIS OF THE CYBERCRIME LAW IN NIGERIA
Since the advent of the internet and the digital age, the prevalence of cybercrime has increased significantly. In Nigeria, the national security adviser (NSA) estimates that the yearly cost of cybercrime to the country's GDP is 0.08%, or N 127 billion.
In the newly promulgated cybercrime Act 2015, there are various types of acts that would constitute an offence, such as: unauthorised access to computers, unauthorised interceptions of communications, unauthorised 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.
Theft of electronic devices, electronic signature, child pornography and associated offences, as well as bigotry and xenophobia, are all criminal under the Act. It also included cyber-stalking, cybersquatting, and cyber-terrorism as offences; there are many valid reasons for Nigeria to have cybercrime laws.
The study takes a subjective look at the characteristics of cybercrime laws and certain challenges that the cybercrime act and laws face, such as: what constitutes a cybercrime, 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 some contentious provisions of the 2015 cybercrime act, including: the cybercrime act and the registration of cybercafés, mandatory winding up and forfeiture of assets, lawful interception of communication, the cyber security fund, and the cancellation of international passports.
Throughout the course of this research, reference and credit would be given to each author whose work was used to supplement existing data.
This research would raise some disputed questions concerning the terms of the Cybercrime Act of 2015, the enforcement procedures, officers, and how capable these officers are in combating cybercrime in Nigeria.
It would also consider the extent, significance, and research methods employed.
HISTORY OF THE STUDY
Humans have progressed from one stage to another in life over the years and decades, continually coming up with new and better ways to carry out their tasks or everyday lives, which they refer to as development.
This may be traced all the way back to the Stone Age and all the way up to the Renaissance-the industrial revolution or the Iron Age. Humanity has progressed through three key periods of evolution: hunter-gatherer, agricultural, and technological.
Human advancements or advancements in information and communication technology (ICT) have resulted in the representation of information in electronic or digital format, which has resulted in the fast demand for free, open, and global access to information by its users.
However, this transition away from the ancient or traditional modes of information exchange has now offered a platform for illegal operations on the internet, especially as laptops, computers, and internet connectivity become more cheap to the general public.
Since the internet's inception and Nigeria's participation in this global phenomenon, there has been a rapid increase in the number of crimes committed on the internet via various platforms such as social media, emails, dating websites, online stores, mobile banking, trade and service websites, and social engineering.
Over the years, society has become increasingly reliant on new information technology to conduct business via online services such as Jumia, Konga, Wakanow, E-bay, Amazon, and Alibaba, manage industrial activities, and engage in personal communication via social media sites such as Facebook, Snapchat, WhatsApp, Pinetrest, Badoo, Tinder, Twitter, LinkedIn, and many others.
While these technology and information enable great gains in efficiency, productivity, and other benefits, they also create a vulnerability for individuals who desire to exploit the system and new scenarios.
Cybercrime is currently pervasive in Nigerian society, with fraud being the most common type. This is due to the high prevalence of unemployment and other societal problems that keep the youths in the Nigerian population idle, along with the “Get Rich Quick” syndrome.
This encourages the youth to explore their abilities in the cyber realm and how they might gain from it without being detected, despite the fact that there are no adequate enforcement mechanisms in place in Nigeria.
The cyber-crime Act, 2015 is the most recent form of legislation combating cyber-crime in Nigeria, and this study aims to analyse the key provisions of this Act, as well as the contentious provisions, as well as to provide possible solutions and recommendations for dealing with these cyber-crime issues in Nigeria.
The research would also shed information on the various types of cyber-crime perpetrators, as well as their techniques and instruments.
STATEMENT OF THE PROBLEM
This research will trace the history and rise of cybercrimes such as ATM fraud, piracy, hacking, email scams, and so on, as well as their impact on the Nigerian economy, Nigeria's reputation in the global international system, the harsh impact of the cyber-crime act 2015 on cyber cafes operating in Nigeria, and the cyber security fund;
its use and management. The study takes a subjective look at the characteristics of cybercrime laws and specific issues that the cybercrime act and regulations confront, such as: what defines a cybercrime, who do you call when a cybercrime occurs, who enforces this act–police or a special force–and how equipped are these officials?
The primary goal of this research is to assess Nigerian cybercrime legislation, with a particular emphasis on the recently implemented Cybercrime Act 2015, which governs cybercrime activities in Nigeria. The study takes a subjective look at the characteristics of cybercrime laws and certain challenges that the cybercrime act and laws face, such as: what constitutes a cybercrime, 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 investigation will include, among other things:
Discuss the Types and Nature of Cybercrime.
Examine the contentious provisions of the Cybercrime Act of 2015.
Examine and analyse important provisions of the 2015 Cybercrime Act;
Suggest and recommend efficient techniques and methods for combating cybercrime in Nigeria.
SCOPE OF STUDY
This research will concentrate on the current and future concerns of cybercrime. The scope of this research or work includes, but is not limited to, an overview of cybercrime in Nigeria, as well as the recently implemented cybercrime act 2015.
An attempt would be made to analyse the Cyber-crime Act of 2015, as well as the international perspective and collaboration on the Cyber-crime Act of 2015.
SIGNIFICANCE OF THE STUDY
The importance of this study cannot be overstated. This is due to the fact that this study would assist every internet user or subscriber; individuals who regularly conduct business, educational, Cyber cafés, and financial transaction activities on the internet.
The study's goal is to examine the recently established cyber-crime legislation, as well as its limitations and obstacles in countering cyber-crime operations in Nigeria. This study would also be valuable to the government, law enforcement, and policymakers as they strive to devise practical and effective solutions to Nigeria's growing cybercrime problem.
Similarly, this work will assist law enforcement agencies in their efforts to combat cybercrime by providing suggestions and recommendations on how they can enforce and equip themselves to combat cybercrime in Nigeria. This work will also aid future research by law researchers and those in adjacent fields.
The doctrinal research approach would be used for this study activity during the course of this investigation. The research will use both primary and secondary sources of information.
To aid in this investigation, the appropriate statutes and case laws would be studied.
The nature of this research also necessitates a heavy dependence on online resources, textbooks, journals, and papers authored in this field.
What exactly is crime?
The definition, elements, and scope of crime would be analysed with the goal of understanding and discovering the true meaning of cybercrime and its laws in Nigeria.
Sir Carleton Allen has written:
“Crime is a crime because it involves wrongdoing that directly and seriously threatens the security or well-being of society.”
Sir Allen's definition explains why various activities have been designated as crimes by the judicial or legislative branches. These criminalised acts do not necessarily reflect the current condition of circumstances.
That is, a crime may continue to be a crime even after the act or crime no longer poses a harm to the public or society. As a result, Allen's point of view describes what he believes should be criminal rather than what is illegal.
Some crimes, however, may also be considered civil wrongs or torts, such as theft or criminal damage, for which the victim may seek damages and compensation.
A crime is defined as any act or omission that violates a law and results in punishment. The penalties can vary from a fine to detention in jail. The seriousness of the crime will usually determine the level of the offence or crime.
Kadish defines crime as any conduct or omission to act that is prohibited by legislation made for the protection of the general public, and the judiciary is to punish the perpetrator of a crime if found guilty of the offence as begun by the state's prosecutor. Kadish defines a “public crime” as a public wrong and a “private crime” as a “civil wrong” and tort to a person.
Preliminary ingredient; before attempting to prove that the defendant is guilty of the claimed crime, the state must first determine
(i) that there has been some injury that constitutes a crime, and
(ii) that someone's criminal act is responsible for the injury. In a cybercrime prosecution, the state would have to prove that there was an injury caused by the cybercrime act and that the defendant committed the cybercrime conduct.
The prosecution must prove two (2) components during a criminal trial in order for the suspected criminal to be found guilty. These elements are known as the ‘Actus Reus'-an act (a Prohibited action), and the ‘Mensrea'-this is the mental aspect of a guilty mentality or intention.
For example, if a person intentionally and without lawful excuse (such as self-defense) strikes another, causing him harm or death, the prohibited conduct is the striking and the mental element, or guilty mind, is the intention to strike/hurt/injure.'Actusreus' translates as “to do an act” from Latin, referring to the commission of a criminal act or the unlawful omission of an act.
It is the act, when combined with mensrea, that makes a crime. The act of a cybercriminal deceiving another on the internet to transfer a certain amount of money for false reasons or under false pretences, which would amount to a criminal act of fraud.
‘Mensrea' is a Latin word that means “to have in mind.” It is an important component of every crime since it relates to the necessity to assess if the defendant was in a sufficient state of mind to perform the specific crime in issue with the ‘guilty mind'. – 1)
In the Hyamv DPP case, it is related to the concept of sufficient “criminal intent.” The case of Sweet v. Parsley demonstrates that mensrea is required when the offence is an actual crime rather than a normative offence.
Furthermore, there are two additional factors that must be proven: causation and social harm. Causation simply indicates that the banned behaviour caused or resulted in the ultimate harm.
In order to establish social harm, the State must show that the defendant committed a physical act that caused social injury with the intent to create such harm.
What exactly is cybercrime?
Because cybercrime is a young and rising sector of criminal law that has only lately been brought to light in the legal system, there is no defined or generally accepted concept of ‘cybercrime' under Nigerian law.
There is minimal distinction between crime and cybercrime; the main distinction is the scope and platform on which cybercrime activities are carried out.
The term cybercrime is commonly used to characterise criminal behaviours that take place in cyberspace or the cyber environment. Furthermore, cybercrime can be described as any crime using computers and networks, including crimes that do not primarily rely on computers, and the computer is usually either a tool, a target, or both.
As a result, cybercrime encompasses offences involving cyberspace, computers, and other electronic information storage devices, such as data interference, illegal interception, unauthorised access, and device misuse.
Various legal scholars have also argued that cybercrime is simply an extension of old crimes through the computer. That is, our statutes recognise cybercrime offences, but they are now promoted and carried out through the use of computers. However, digital media is employed as an alternate instrument in committing them.
According to Chukkol, it has been correctly observed that computers or related electronic medium such as mobile phones may play a role in nearly every type of criminal activity for which penalties already exist under existing statutes such as the penal code law, the criminal code Act, and the Economic and Financial Crimes Commission Act.
However, there is still a need for distinct cybercrime legislation with the goal of combating, prosecuting, and discouraging cyber criminals, which is why the Cybercrime Act, 2015 was enacted.
The foundation of criminal law in Nigeria's legal system is that no one can be punished for an infraction that is not specifically mentioned in any criminal statute, legislation, or enactment. Furthermore, the present Penal Code and Criminal Act in Nigeria are insufficient and ineffective in dealing with such computer offences.
The old criminal laws in Nigeria did not address or envision concerns such as jurisdiction–what happens when a Nigerian commits a cybercrime outside of Nigeria? Who has legal authority? What courts have jurisdiction to hear the case? Evidence and inquiry are also issues that must be handled. That is why new laws or enactments addressing these challenges are required.
Cybercrime Against Individuals;
Cybercrime against persons or individuals includes activities such as broadcasting child pornography, harassing a person via any electronic device or the internet, cyberbullying, fraud, and the transmission of viruses and DDOS. Cybercrime against people can also be viewed as a violation of citizens' online right to privacy.
Intellectual property crimes (software piracy, theft of computer source code, infringement of copyright, patent, and trademark), cybersquatting and cyber vandalism, virus spreading, cyber trespass, and hacking are examples of cybercrimes against property that are common in Nigerian cyberspace.
Cybercrime aimed towards the government
The expansion of the internet has resulted in a variety of crimes and cyber terrorism with the goal of jeopardising a government's national security by gaining unauthorised access to their data and causing a variety of other harms, for example. Wikileaks, who unlawfully obtained files from the US government and threatened to reveal them to the media.
Cybercriminals against society;
Any unlawful act committed with the goal of inflicting harm to the cyberspace or society as a whole; the cyberspace can be utilised to carry out physical attacks on individuals and society as a whole.