E-Commerce In Nigeria: Legal Framework, Challenges And Prospect
By Abanikanda wuraola
TECH DIGEST – E-commerce refers to the use of communications technology particularly the internet to buy, sell and market goods and services to customers. The internet has brought about a fundamental shift in national economies that are isolated from each other by barriers to cross-border trade and investment, isolated by distance, time zone and languages and isolated by the national differences in government regulations.
E-commerce equally fosters direct access to distant markets and promotes globalisation and commercial activities and blur many of the current distinctions between domestic and foreign companies to an extent that it becomes practically impossible to determine the origin of the products. E-commerce is not limited to the purchase of a product, it includes e-mail, and other communications platforms, all information or services that a company may offer to customers over the net, from pre-purchase information to after sale service and support. The major significance of E-commerce thus lies in the fact that it encourages a single world trading system, which is facilitated by access through electronic means to goods and services from different parts of the world.
Most of the existing statues in Nigeria lag behind towards the development and growth of e-commerce in particular and ICT as a whole. So many legal researches and studies on e-commerce in Nigeria have been conducted. Most of these studies are of the opinion that the Nigerian legal system lags behind ICT-based legislation and that the existing statutory laws are quite inadequate to address some of the legal issues affecting e-commerce. These issues include electronic evidence cybercrimes, security and data production, e-payment system and inevitably trans-border issues, and many more.
There is, therefore, the need to map out appropriate legal and regulatory measures, to govern the emerging regime. It has been stated severally that in Nigeria, significant efforts at the regulation of e-commerce-related activities are still at the stage of Draft Bills before the National Assembly. It is important to note that, even where these bills are passed into law, Nigeria may still face new legal issues in this area that will call for legislative intervention.
Given the speed with which the internet is permeating commercial transactions in Nigeria, especially in the banking and telecommunications sectors of the economy, the best that can be suggested is that the legal issues and problems presently confronting e-commerce in the country should be addressed directly and expeditiously, in the interests of the teeming population of Nigerian consumers. To achieve this, the National Assembly should be pressurized into passing bills concerning electronic commerce, a top priority so that they can be enacted into law as quickly as possible.
In the interim, our courts should take a giant stride by interpreting the existing traditional laws liberally so as to bridge the gaps therein in order to make such laws amenable to electronic transactions, particularly in the emerging trend of the present-day information age.
Indeed, it was argued that legislation is not the only means by which electronic transaction and attendant documentation may be facilitated legally. The courts may also adapt to recognize electronic transactions in the absence of legislation or private contract. As the then Justice Bingham once put it thus: the common law ‘has in the hands of judges the same facility [as the law merchant] for adapting itself to the changing needs of the general public; principles do not alter, but old rules of applying the change, and new rules spring into existence.
It is hoped that this judicial activism would be adopted by other Nigerian judges, Supreme Court justices inclusive, especially in the areas where our existing legislation are grossly inadequate, comprehensive or elaborate enough to address legal challenges of the emerging technological advancements. This will certainly set a good precedence to ensure the protection of e-commerce consumers, entice investors and above all bring about economic development and sustainability in the country.
The germane issues with regards to contracts in E-commerce are documentation and signature. The provision of section 4 of the Statute of Fraud, 1677 or Lagos State Law Reform (Contract) Law and our various statutes on real property and landed instruments, all of which require certain contracts to be in writing and be duly executed .The question then is would an electronic mark or sign constitute a valid sign-off of a contract by email and be binding? Many of these issues are still not quite settled even in the UK although some decisions incline favourably towards interpreting electronic signature so marks in emails as satisfying the traditional requirement of writing and due execution.
E-commerce transactions are paperless transactions made through magnetic materials such as tapes or disks. These are in contradistinction to the paper-based transactions that are embodied in a permanent form and typically expressed in words and figures usually authenticated by signatures. Such transactions can therefore not be altered without an alteration on the face of the document.
With respect to signatures, by the provision of section 93(2)(3), evidence act 2011, an electronic signature in relation to a data message conveniently satisfies any requirement for a handwritten signature in so far as it sufficiently identifies an electronic record to the individual. The provision of article 7 of the United Nations Commission on International Trade Law (UNCITRAL) model law on e-commerce 1996 is equally trite on this issue. Thus, for the purpose of establishing proof of electronic signatures. The use of a password, identification, user names etc may suffice. Hence one may safely posit that electronic signatures for the purpose of execution are admissible in evidence provided it is certified and incorporated in an electronic communication in the course of an e-transaction.
Also, other legal challenges affecting e-commerce include the formation of contracts. The element for a valid formation of contract includes an offer, acceptance, consideration, intention to enter into legal relation. The question is at what point can an offer be made with regards to an electronic business transaction or how to differentiate between invitation to treat and offer an electronic transaction, at what point can it be said that an intention to enter legal relation is made? E-commerce requires confidence and trust the satisfaction that transmitted orders or invoices have not been altered and emanate from whoever they appear to be from. There is a need for a guaranteed level of privacy /confidentiality with respect to information. Lastly, the alarming rate of cybercrimes in Nigeria, high level of illiteracy.
Electronic commerce is no doubt an aspect of commercial transaction in Nigeria and it has come to stay in this time. The government should go beyond creating laws, to activate utilisation of the electronic delivery platforms in its commercial interactions and for delivery of government services.
Abanikanda Happiness Wuraola can be reached via [email protected]