Academic journal article Journal of Information, Law and Technology

Cyber-Crimes and the Boundaries of Domestic Legal Responses: Case for an Inclusionary Framework for Africa

Academic journal article Journal of Information, Law and Technology

Cyber-Crimes and the Boundaries of Domestic Legal Responses: Case for an Inclusionary Framework for Africa

Article excerpt

1. Introduction

In the world of the twenty-first century, economic and political barriers are being lowered and technological advancements in communications and commerce are on the increase, affirming that ours is indeed a globalised world. The globalisation phenomenon is increasingly producing immense opportunities for students, researchers, tourists, and business people, and at the same time fuelling economic growth and development. However, among those taking advantage of opening up societies and borders are criminals who engage in the human trafficking and drug trade, arms smuggling, fraud, counterfeiting, and other financial crimes, and increasingly in computer crimes (Bequai, 1997, p.25; Bequai, 2001, p.475; Tyson, 2007, p.81). This presents a grave predicament so much that today, it is estimated that international crime is a $1 trillion business (Hale, 2002, pp.5-6; Sullivan, 2004; Swartz, 2004). Cyber-crime has indeed reached epidemic proportions. In a relatively recent survey, more than 90 percent of the respondent corporations and government agencies reported computer security breaches at one time or the other. It is commonplace for disgruntled employees and hackers to commit many cyber-crimes while others are committed by crooks using the Web to perpetrate auction fraud, identity theft and other scams. Financial institutions invariably get hit hard as identity thefts reportedly cost them $2.4 billion in losses and expenses in 2000 alone (Hansen, 2002, p.1).

Hardly any organisation or anyone is immune to the possibility of cyber-crime. What more? Within 2008, the World Bank Group's computer network had 40 of its servers compromised by cyber-criminals six times while French President Nicolas Sarkozy's personal bank account suffered intrusions that resulted in considerable financial loss to him within the same year. (2) What more? The Georgia Tech Information Security Centre (GTISC) published its GTISC Emerging Cyber Threats Report for 2009, warning that there will be an increase in the sophistication of cyber-crime and outlining the five areas of higher threats to be malware, botnets, cyberwarfare, VoIP, and mobile devices (GTISC, 2009, p.1).

Numerous writers, policymakers and law enforcers have called for stringent and innovative laws to prevent and punish computer crimes. Others fear that such initiatives will compromise human rights. Yet, others want legislation to make computer software companies liable for damages caused by their software-security failures. Responding to the challenges of cyber-crime has indeed engendered a cacophony of ideas.

What exactly is cyber-crime? Are all unlawful activities involving computers and the Internet simply to be classified as 'criminal'? Can cyber-crime also engender civil liability? In light of the transnational implications of cyber-crime, how are states responding to the problem and what practical implications do such responses portend for African states?

An attempt is made to tackle the foregoing plethora of questions relating to the problems arising out of efforts at formulating appropriate legal responses to cyber-crime. While the focus is on the African region, this paper nonetheless draws on the experiences and existing frameworks of other world regions as much as necessary.

2. Curbing Cyber-Crimes: Some Conceptual Dilemmas

One might not find the word 'cyber-crime' in contemporary lexicon, but it is a very popular term describing the criminal activities related to cyberspace or the cyber-world. While scholarly consensus on a single definition of the terminology is yet to be achieved, it would appear that writers and law drafters are more comfortable with describing various elements constituting cyber-crime than in defining it. According to the Council of Europe (COE), for instance, cyber-crime involves 'action directed against the confidentiality, integrity and availability of computer systems, networks and computer data as well as the misuse of such systems, networks and data. …

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