A Critical Review of Section 17 of the Cybercrime Act 2015.
By Francis Ogunbowale
The general purpose of the Cybercrime (Prohibition, Prevention, Etc) Act 2015, is mainly to provide a unified legal framework to curb cybercrimes and prescribe punishment for the offenders.
Section 17(1) deals with bindingness of electronic signature of the originator on the originator in respect of any purchase of goods. Section 17(2) imposes the burden of proof that the electronic signature is not that of the originator on the contender; Section 17(3) provides for Penalty of 7 years imprisonment or payment of N10,000,000 or both, for Forging Electronic Signature; while Section 17(4) excluded the validity provided for under Section 17(1) of contractual transactions relating to creation and execution of wills, birth and death certificate, matters of family law, issuance of court orders, notices and official court documents.
Section 17 (1) appears not to suffer any legal disability. The section is in line with Section 93(2) of the Evidence Act 2011 which provides that ‘where a rule of evidence requires a signature or provides for certain consequences if a document is not signed, an electronic signature satisfies that rule of law or avoids those consequences’. The provision is very positive and will further enhance commercial transactions, especially as it relates to purchases and sale of goods.
Similarly, Section 17 (2), like what obtains in criminal law and jurisprudence, imposes the burden of proof on the person who asserts that an electronic signature does not belong to the originator of the signature. Forgery is a crime and the burden of proof of forgery lies on the person who alleges it. The burden does not shift. See, Omodele Ashabi Eya & Ors V Alhaja Risikatu Olopade & Anor (2011) LPELR-1184 (SC).
On Section 17(3), it is suggested that the disparity in the penalty of 7 years imprisonment, under the section and that of 5 years imprisonment under Section 14 (2) of the Act should be reviewed and harmonized.
On Section 17(4), it is obvious that the exclusion of the documents listed under it, is in conflict with Section 93(2) of the Evidence Act which provides that ‘where a rule of evidence requires a signature or provides for certain consequences if a document is not signed, an electronic signature satisfies that rule of law and avoids those consequences’. While Section 93(2) of the Evidence Act permits the use of electronic signature for all forms of document, Section 17 (4) of the Cybercrime Act, seemingly remove such validity in relation to the documents listed under the section.
In summary, One, it is suggested that the clause ‘any other business’ in Section 17 (1) of the Cybercrime Act should be completely expunged. The section should be restricted to electronic signature on document relating to ‘purchases of goods’. Two, Section 17 (3) should be amended to conform with Section 14(2) to provide a uniform penalty of either 5 or 7 years imprisonment or payment of fine of N10, 000,000 or both. Three, Section 17(4) which excludes applicability of Section 17(1) in matters relating to execution of wills, death certificate, birth certificate, matters of family law, issuance of court orders, notices and official court documents, should be completely expunged.
Francis Ogunbowale is a lawyer resident in Lagos State
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