MATTERS ARISING FROM ICT UTILIZATION
Having x – rayed the emergence, meaning, significance and challenges of ICT in Nigerian legal profession in the preceding chapters, we shall look proper into legal matters arising from the utilization of ICT in Nigerian legal profession in this chapter.
Nonetheless, we shall examine the mode the internet is used to generate defamation. We shall also see how trademark, copyright and intellectual property laws are violated in the internet.
We shall evaluate the meaning of internet/computer crimes and abuses and various categories of computer crime.
Similarly however, we shall analyze ICT skills and its relevance to Nigerian legal profession.
Finally, we shall look into legal issues associated with the formation of electronic contracts.
THIS IS A SAMPLE | WE ARE PROFESSIONALS IN WRITING
4.2 Defamation in the Internet
The publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally; or which tends to make them shun or avoid that person.
Notwithstanding the above definition, to defame means: “to attack the good reputation of some one by saying something unfavourable about them.’’
Thus, defamation or libel on the internet is one of the hot topics of internet law.
Any lawyer looking at the problem of internet libel is struck by the fact that it has an inherently transactional nature. Because of the international connectivity of the internet, its speedy transmission of huge amounts of data simultaneously to multiple destinations, and general lack of respect for national borders, it is extremely easy for an individual to make a defamatory comment via a computer situated in England attached to the internet, which can then be read by thousands if not millions of people similarly equipped in multiple other national jurisdictions- where the law of and defenses to, defamation may be very difficult than those found in the English legal system.
In the pre-internet days, such transactional publication would have, for economic reasons, been almost exclusively the preserve of a large traditional publisher, such as newspaper, TV station or book publishing house. But the situation is completely different today.
When defamatory statements cross national boundaries, inevitably, problems of international private law are invoked, with difficult questions raised such as what country will have jurisdiction to hear any action for damages raised, what country’s law should govern the action (the choice of law question) and if a decree is obtained, how can it be enforced if the defender lives outside the jurisdiction of the court.
In effect, those libeled on the internet may find that their case is not the simplest to pursue. By the same token, internet libel defenders may be dismayed to find that they can be sued in the courts of multiple countries to which they have little or no connection, and where the law applied is foreign to them in the extreme.
The above legal issues are some of the problems associated with defamation in the internet.
Nonetheless, some sites of defamation on the internet are, namely:
a. One to one email message
b. Mailing lists
c. Newsgroup, the usenet and discussion fora.
d. The world wide web.
4.3 Trademark, Copyright and Intellectual Property Law
By section 1 of the Trade Marks Act 1994, a trade mark is
…any sign capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings.
Trade marks law serves two purposes; first, it protects the good will and reputation which a trader has built up around the mark involved and, second, it prevents the public from being deceived as to the origin of goods or services.
However, in certain jurisdiction, US and UK in particular, the issue of trade mark infringement has attracted some judicial entertainment thereby establishing the tendency of an upsurge of litigation with respect of ownership of trade mark placed on the internet.
Dispute in this area of law has always been with respect to ownership and use of domain names in cyberspace. For the purpose of clarity, a domain name is part of the address assigned to each computer or services on the internet as every resource thereon, such as web page, or a file of information has its own specific address. An example of a domain name is lawyers http://martinslibrary.blogspot.com.
Certain problems have arisen in relation to this system of domain names. It should be noted that no two domain names are allowed to be identical and hence no two users can separately set up the same domain name.
However, cases abound where a particular person could have been trading with a name for a long time but only to discover that another person has registered it as a domain name with the knowledge that he would want it. The person registered on the web might then ask for a financial reward before surrendering the name. These are cases known as “cyber –squatter” disputes.
Also, dispute may arise where some one knows a particular trade mark to belong to another person but registers it as his own domain name. This is to fascinate customers of the owners of the trade mark to the domain name who later would just be surprised to discover goods advertised on the web to be different from what they normally require.
Another source of dispute is the case of ‘innocent’ registration.
Definitely, a lawyer needs to look out for situations like this not only as a source of briefs but as potential areas of interest as in most cases of the courts have ordered the wrong user of the name to hand it over to the person who is more entitled to it.
The law of copyright in Nigeria is regulated by Copyright Act.
Thus, section 1 of the Copyright Act, defines marks eligible for copyright as including but not limited to the following:
a. Literary works
b. Musical works
c. Artistic works
d. Cinematograph films
e. Sound recordings; and
Therefore, for a work to subsist as copyright, aside from the need for originality, it must have also been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly out with the aid of any machine or device.
Accordingly, the provisions of the Copyright Act, are applicable to materials on the web in so far as such materials fall within the categories of works eligible for copyright.
Such work subsisting in copyright therefore enjoys protection from infringement and the doing of any act prohibited under the Act in relation to the work by some one who is not the author would amount to infringement of copyright and attendant to which are both civil and criminal liabilities.
Intellectual property is the name given to legal rights which protect creative works, inventions and commercial good will.
Basically, intellectual property rights are designed to provide remedies against those who steal the fruits of another person’s ideas or work.
There are various kinds of intellectual property. It includes’ copyright, patents and trade marks. It also cuts across the less familiar ones like the law of confidence, designs rights and passing off.
Hence, we intend to look into copyright, trade mark and intellectual property in this research work. However, having commented on trademark and copyright, we shall examine domain name as an intellectual property in the internet.
A domain name is a human comprehensible alternative to string of number, as 234.532.80.69 called an I.P address, which web server use to identify each other on the internet.
The creation of memorable domain names as an alternative to numerical I.P. addresses has spawned a new industry and a trade in valuable domain names. When a company decides it wants to establish a website, the first issue it needs to address is the choice of its domain name.
Ideally, the company would like to have many highly memorable domain names which would all map onto the same string of numbers. But domain names are a scarce resource and disputes arise when more than one company tries to get the same name. This obviously causes an immediate conflict with the trade mark system.
An example of domain name, the Nigerian Bar association www.NBA.Com. In Nigeria, it is not clear whether “Nba” in this context could not serve for Nigerian Boxing Association. No two domain names can be identical. The controversy therefore is over who gets that domain name and why.
Registration of domain name is meant to be simple procedure of applying to the appropriate national registry with a registration fee. Traditionally, domain names are allotted on a “first come first serve” basis. In practice and especially for commercial companies, it is sensible to use a domain registration agent who will have established faculties to register domains in national registries all over the world.
Domain registration agents all have websites where a potential customer can instantly check, free of charge, to see if a particular domain registration agents give detailed advice regarding national registration requirements and administrative problems.
Country domains are based upon the international two letter code (the 150 – 3166 list). Within each country domain are sub-domains for different types of activity. For example, .com is a sub-domain indicator showing that the name is for a commercial site within a country domain. The .Ng or .UK stem indicates that the domain is located in Nigeria or United Kingdom. 
One way in which disputes have arisen is where a third party intentionally registers a domain name in the knowledge that some one else will want it. A second way in which disputes arise is where a domain name is registered by some one who knows it is the same as a trademark belonging to some one else, or very similar to such a trademark but intends to use it for their own purpose.
Thus, in Shell International Petroleum Co vs Allen Jones, a chap, who the tribunal ultimately regarded as a fraud, registered the domain name www.shell-nigeria.com. . When registering the domain name with the concerned registrar, he gave a supposed yahoo e-mail address matching that of a 16 year old ‘computer engineer’ called Afez Adeyemi. With this domain name, he set up a website, which he claimed belonged to a supposed, but in the end fictitious company called Shell Petroleum NG Unlimited and from where he was offering consignments of oil at heavily discounted prices. The website copied information from the website of the well known Shell Oil Company and was sufficiently similar to the legitimate company’s website that at least one person intending to enter into a contract to the tune of $25,000 thought he was dealing with Shell. The legitimate Shell Oil Company’s website address for its Nigerian business is www.shellnigeria.com that is different from that registered by the fraud by only the missing hyphen.
The WIPO panel decided that the registered domain www.shell-nigeria.com infringed the unregistered/ common law trade mark ‘Shell Nigeria’ belonging to the genuine Shell Oil, which that company had used as part of its own registered domain name of ww.shellnigeria.com.
Similarly however, disputes can arise over “innocent” registration. This is where registration is made of what would be logical choice of a domain name.
4.4 Computer/Internet Crimes and Abuses
Indeed, new technologies create new opportunities for crimes. As soon as one avenue is blocked to the criminal, another is discovered. As information technology has spread, so too have computer crime and abuse.
The internet for example, is used not only by innocent members of the public but also by fraudulent traders, paedophiles, software pirates, hackers and terrorists.
Hence in this head, we shall look into the meaning of internet crime and some internet/computer assisted crimes.
Meaning of Internet/Computer Crime
The Telecommunications and Postal Offences Act, has this to say on electronic crime:
Any person who inter-alia engages in computer fraud or does anything relating to fake payments, whether or not the payment is credited to the account of an operator, or the account of a subscriber is guilty of an offence.
Computer related fraud has been defined by the United Kingdom’s Audit Commission as:
Any fraudulent behaviour connected with computerization by which some one intends to gain financial advantage.
Nonetheless, Internet crime has also been defined as using:
Unlawful act using computer as either a tool or a target or both.
Internet Assisted Crimes
As stated in the introductory pages, we shall now look at some categories of internet assisted crimes. Some of them are as follows:
Computer virus means:
A self replicating program that attaches to a computer system, spreading to other systems via a network and when activated, often at a later date, can corrupt or destroy data stored on the hard disk.
Viruses are generally developed with a definite intention to cause damage to computer files or, at the very least, cause inconvenience and annoyance to computer users.
The virus usually occupies the first few instructions of a particular program on an infected’ disk and relies on a user choosing to execute that program. When an infected program is executed, the virus is the first series of instructions to be performed.
In most cases, the virus’s first action is to copy itself from the diskette onto the PC and hide within obscure files, the operating system code or within unused disk blocks which are then marked as being ‘bad’ and unavailable for reuse. The virus can then proceed to perform any of a number of tasks ranging from the irritating to the catastrophic such as reformating the hard disk.
Some viruses lie dormant, waiting to be triggered by a particular event or date. The virus then infects other diskettes, perhaps by modifying operating system programs responsible for copying programs. From there, the next P C to use the diskette will be affected.
One of the legal challenges with virus is how to identify the perpetrator of the virus into the computer.
To lack means:
To surreptitiously break into the computer, network, services or database of another person or organization.
Hacking is also defined as unauthorized access to data held on a computer system.
The extent of hacking is extremely difficult to establish as it is usually only discovered by accident, with only about two percent of security breaches discovered as a result of positive action on the part of security staff.
Hacking is often perpetrated by employees of a company who have acquired inside knowledge of particular user ids and passwords. The ability of such hackers to carry out illegal actions without being detected is often hampered by the audit and monitor software that all computer operating system supply.
The motive behind hacking can often be mischievous rather than anything more sinister. Thus, computing students who are learning about operating systems may take delight in penetrating a University’s security system to prove that it can be done, or to gain access to exam questions and answers.
3. Logic Bomb
Logic bomb means:
An unauthorized program designed to interfere with the operation of a computer system when inserted into it and activated.
A logic bomb is similar to a virus and is sometimes delivered by means of a virus.
The bomb can be written to destroy or, worse, subtly change the contents of an organization’s computer systems. However, it does not begin this activity until signaled to do so by the hacker or extortionist, or it may be activated if a cancelling signal fails to arrive.
In many cases, the bomb itself is not actually planted. A warning message alerting to organization to the placing of a bomb is usually sufficient to persuade vulnerable institutions to hand over huge sums of money.
4. Cyber Pornography
Books, pictures, films, etc designed to be sexually arousing, often offensive owing to their explicit nature.
Accordingly, one of the developments most apparent to internet users has been the enormous growth in undiscriminating distribution of electronic mail messages at a price, often via websites demanding credit card payments before viewing is allowed.
Attempts to control the nature of material available on the internet have given rise to great difficulties in practice. The number of sites on the net is enormous and many are transient in nature. The internet, remain saturated with unlimited quantity of unwanted and illegal pornographic materials.
In many jurisdictions including Nigeria, no prosecution has yet been brought against ISP – 59.
Hence, the legal issue for thought is the liability of the author of the pornographic material and that of the network service provider.
5. Intellectual Property Crime
Intellectual property crimes include: software piracy, copyright infringement, trademark violations, theft of computer source code etc.
The legal issue associated with intellectual property crime concerns how the owner of the book, software or music can actually seek redress when his/her intellectual property has been illegally down loaded from the internet.
In Nigeria however, intellectual property is governed by the Copyright Act and the Nigerian case laws respectively.
6. Financial Crimes
Financial crimes cover situation where an unknown person opens website with a fictitious name in the internet with intent to get money from people by false pretense using internet as a tool/means.
Accordingly, sections 418 and 419 of the Nigerian Criminal Code Act, make cheating and obtaining property by false pretenses, an offence or unlawful.
In Nigeria, it has to be noted that the Economic and Financial Crimes Commission, established under the Economic and Financial Crimes Commission (Establishment) Act 2002, is charged with the duty of investigating and prosecuting all economic and financial crimes. In effect, Section 5 (1) (b) of the E. F.C.C Act, provides for the function of the Commission. The section provides thus:
The commission shall be responsible for the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam etc.
It has to be noted at this juncture that internet crimes are not limited to the ones identified in this project work. Other species of internet related crimes abound.
Thus, under intellectual property law, cyber crime is provided for in the Nigerian Copyright Act. In effect, works eligible for copyright are protected under the Act.
Financial crimes are regulated by the E.F.C.C Act,especially section 5 (1) (h) which empowers the commission to undertake investigations of all financial crimes.
The provision of the Economic and Financial Crimes Commission Act, is also supported by section 419 of the Criminal Code Act, which make cheating and obtaining property by false pretense offensive.
Patents and Designs Act, also regulates cyber crime where the acts complained of culminates to an infringement of patent rights and design.
Sadly, apart from intellectual property theft and financial crimes, there is no Nigerian law dealing with other computer crimes like, viruses, hacking, pornography, logic bombs etc.
4.5 ICT Skills
In this sub-head, we shall examine the rationale behind the acquisition of Information and Communication Technology skills and its relevance to Nigerian legal Profession.
The art of getting your message across is a vital part of being a successful lawyer. Language and style used in oral or written communication tells a lot about the kind of education and exposure you have had.
The use of information technology to enhance the oral or written communication skill of the lawyer is therefore paramount importance.
Communication is the art of getting your message across effectively whether you are conducting interview with a client or addressing court or board of directors. The purpose of effective communication is to convey a message to recipients audio properly, handle information and improve relationships
Consequently, good and effective communication skills has the following advantages.:
1. It enables you to communicate your ideas clearly.
2. It enhances your corporate and social life.
3. It helps to facilitate activities in the corporate and business environment.
4. It can earn you promotion
5. It endears you to people.
6. It is a mark of intelligence
7. Your audience will be more patient with you.
8. When you talk, people tend to listen
9. Your writing will make interesting reading.
Notwithstanding, in this age where attention span is short, communicators have to get to the point more quickly or they will lose their audience. It is therefore necessary to use any technology available to achieve these objectives.
The numerous advantages in using modern information communications technology for communication include:
b. Low cost
e. Expansion of Business
Apart from improving your communication skills with continuing education, you can also rely on modern information technology to enhance your communication skill. In line with modern trends in law office management, it is necessary for a lawyer who wants to be efficient with a comparable style of practice with counterparts abroad to introduce some, if not all available information and communication technology in his practice.
With the increase in demand for legal service across the globe, lawyers need to be abreast with the law and practice in jurisdictions other than theirs. More and more lawyers now want to use services of lawyers outside their jurisdiction and Nigerian lawyers have not been left out of this trend. Therefore, the use of better information and communication equipment is a must.
As we enter the age of the new electronic lawyer, information technology is clearly shaping both legal practice and also the legal profession.
Some of the advantages of introducing I T into our practice are:
i. Production of error-free documents with the use of spell and grammar check facilities of the computer.
ii. Communication by e-mil
iii. Research on the Internet
iv. Study on the Internet.
v. Proper keeping of client’s records and matters using relevant software.
vi. Production of legal documents using precedence stored on computer.
The use of the following technology will enhance communication and communication skills in our practice.
a. The Computer
b. Legal IT software
d. The internet
e. Modern office equipment
4.6 Formation of Electronic Contracts
Turning to substantive matters concerning the formation of an electronic contract, the basic rules concerning the formation of a contract apply equally to electronic contracts. Thus, among other things, there must be an offer which is met with a matching and unconditional acceptance.
After identifying the party who makes the acceptance, the questions following then are where and when did the acceptance become effective? This has a bearing on determining the precise moment that a contract was made as well as, in the case of contract connected to more than one country especially, where the contract was made- the latter possibly having an effect on which country’s law should govern the contract.
For example, Dave in Lagos sends an offer by e-mail to Jane in Amsterdan. Jane sends an acceptance by e-mail from Amsterdam to Lagos. The e-mail is sent in Amsterdam at 1100GMT but does not reach Lagos until 11.15 GMT and is not seen by Dave until 1300 GMT. The legal issue for determination is whether the contract was made in Lagos or Amsterdam? Also, was it made at 1100, 11.15 or 1300 GMT?
Similarly, as the practice of concluding contracts electronically grows and evolves, another interesting issue that the courts are likely to encounter at some point in the future is that of whether a contract can be concluded between two computers operating at the time of the exchange without human input. In other words, can one computer make a contract with another computer and render that contract binding on the proprietors of the computers, that is, the computers being seen as electronic agents of the proprietors.
A contract is of course regarded as requiring a meeting of the minds of the parties concerned although of course, the law has long recognized the ability to enter into contracts through agents, but that recognition was traditionally limited to agency capacity by human beings or recognized judicial persons such as companies and so on.
In the United States, the possibility of contracting through electronic agents is now legally recognized. Section 102 of the U.S Uniform Computer Information Transaction Act 1999, defines an electronic agent as:
A computer program, or electronic or other automated means used independently to initiate an action or respond to electronic messages or performances without a review or action by an individual at the time of the action, response or performance.
The Act, then goes on to provide rules for attributing the actions of an electronic agent to its owner. Thus, section 107 of UCITA, provides that a person that uses an electronic agent that it has selected for making an authentication, performance, or agreement, including manifestation of assent, is bound by the operations of the electronic agent, even if no individual was aware of or reviewed the agent’s operations or the results of the operations.
Accordingly, the above legal issues, are matters that will have to be addressed by future e-commerce legislation in Nigeria. For instance, when is contract said to have been validly made in e– commerce, and the issue of whether one computer can make a contract with another computer and render that contract binging on the proprietors of the computers.
 Bryan A. Garner, ‘Black’s law Dictionary”. Ninth Edition.
 Chambers 21st Century Dictionary’ Revised Edition
 Dr. Epiphany Azinge, ‘Informant Technology law’ continuing legal Education Workshop series 2003/2004 A journal of the Nigerian Association p 87.
 Dr Epiphany Azinge ‘Information Technology law’ Continuing Legal Education Workshop Series 2003/2004 A journal of the Nigerian Bar Association p. 87.
 Ibid Dr Epiphany Azinge.
 Op.cit. Dr Epiphany Azinge. P 88.
 Op.cit. Dr Epiphany Azinge. P 88.
 Op.cit. Dr Epiphany Azinge. P 88.
 Op.cit. David Bainbridge, p 100
Mr. Kanyinsola Ajayi, ‘Information Technology and Legal Practice.’ Continuing legal Education workshop series 2003/2004 p 12.
 Ibid Mr. Kanyinsola Ajayi p 13.
 Op.cit. Mr. Kanyinsola Ajayi.
 Op.cit. MR. Kanyinsola Ajayi
 Op.cit. Mr. Kanyinsola Ajayi p 15.
 Copyright Act .
 Op.cit. Mr. Kanyinsola Ajayi p 12.
 Op.cit. Mr. Kanyinsola Ajayi p 12.
 David Bainbridge, ‘Introduction To Computer Law’ Third Edition, pitman Publishing 1996 p 7.
 Ibid David Bainbridge p7.
 Abbreviation for Internet Protocol
 Dr Epiphany Azinge, ‘Information Technology Law.’ Continuing Legal Education Workshop Series 2033.2004 Journal of the Nigerian Bar Association P 73.
 Ibid Dr Epiphany Azinge
 Op.cit. Dr Epiphany Azinge P74.
 Op.cit. Dr Epiphany Aznge
 Op.cit. Dr Epiphany Azinge
 Wipo Case No D 2003-0821 of 18 December 2003, text available online as of 29/04/04 at: http://www.arbiter.wipo.int/domains/decisions/html/2003/d2003-0821.html (visited 24th May, 2013).
 Op.cit. Dr Epiphany Azinge p 74.
 P.M. Heathcoat, ‘A Level ICT’ Second Edition, Copyright @ P.M. Heathcoat, 2000 p 44.
 Ibid P.M. Heathcoat p 44.
 Section 3 (h) Cap T4 LFN 2004.
 Dr Epiphany Azinge, ‘information Technology law’ Information Technology & Legal Practice: Continuing Legal Education Series 2003/2004 p 92.
 Toun Adebiyi, ‘Internet Crime’ Modern Practical Journal for Investment Law vol. 9 No 1-2, 2005 p 148.
 ‘Chambers 21st Century dictionary’ Revised Edition.
 P.M. Heathcoat, ‘A Level ICT’ Second Edition. Copyright @ P.M. Heathcoat, 2000 p 45.
 Op.cit. P.M. Heathcoat p 45.
 Acronym for personal computer Mbam, B.C.E; ‘Fundamentals of Computer & Informant Technology’ Published in Nigeria by: Real, Production Co. 2007 p9.
 Op.cit. P.M. Heathcoat p 46.
 Bryan A. Garner, ‘Black’s Law Dictionary’
 P.M. Heathcote, ‘A Level ICT’ Second Edition, Copyright @ P. M. Heathcoat, 2000 p 44.
 Neil Barrett, ‘Digital Crime ‘ .p40 :A Level ICT , Second Edition, Cpyright @ P.M. Heathcote 2000 p44.
 Op.cit. P.M. Heathcote P 44.
 Op.cit. P. M Heathcote p 44.
 ‘Chambers 21st Century Dictionary’ Revised Edition.
 P. M. Heathcote, ‘A Level ICT’ Second Edition Copyright @ P. M. Heathcoat 2000 p 46.
 Ibid P.M. Heathcote P 46.
 ‘Chambers 21st Century Dictionary’ Revised Edition.
 Dr Epiphany Azinge, ‘Information Technology Law’ Information Technology & Legal Practice’..Continuing Legal Education workshop Series 2003/2004, p95.
 Ibid Dr Epiphany Azinge p 95.
 Acronym for Internet Service Provider
 Cap 68 LYN 1990.
 Criminal Code Act .
 Abbreviation for Economic and Financial Crimes Commission
 Cap C28 LFN 2004.
 Economic and Financial Crimes Commission Act
 Cap 344 LFN 2004
 Mrs. Roli Harriman, ‘Information Technology and Communication Skills’ Information Technology & Legal Practice: Continuing legal Education Workshop Series 2003/2004. A Journal of the Nigerian Bar Association p . 105
 Ibid Mrs. Roli Harriman p 105.
 Op.cit. Mrs. Roli Harriman p 105.
 Op.cit. Mrs. Roli Harriman p 105.
 Op.cit. mrs. Roli Harriman P 106
 Op.cit. Mrs. Roli Harriman p 106.
 Op.cit. Mrs. Roli Hrriman p 106
 Op.cit. Mrs. Roli Harriman p 106.
 Op.cit. Mrs. Roli Harriman p 107.
Gbenga Bamodu, ‘Information Communications Technolgy and E – Commerce: Challenges and Opportunities For The Nigerian Legal System and Judiciary.’ (Jilt) http://www.2warwick.ac.UK/fac/soc/law/elj/Jilt/2004-2/bamodu/. (Visited 24th May, 2013).
 Op.cit. Gbenga Bamodu.
 Op.cit. Gbenga B[modu
 Op.cit. Gbenga Bamodu
 Op.cit Gbenga Bamodu
 Uniform Computer Informationation Transaction Act,1999 of the United States.
 Abbreviation for Uniform Computer Information Transaction Act, 1999.
 Op.cit Gbenga Bamodu.