New Cybercrime Act: impact for trademark owners

Nigeria

Over the past years, there had been some level of agitation about big data management and the protection of the Nigerian cyber environment. Data security was a major issue in the absence of laws to regulate this environment. The lack of a definitive legal machinery in Nigeria to tackle the pervasive problem of cybercrime generated a persistent clamour - from both the information and communications technology (ICT) sector and the legal community - for a concrete and comprehensive legal, regulatory and institutional framework to deal with the hydra-headed problem of cybercrime.

Eleven years ago, in early 2004, former president Olusegun Obasanjo set up the National Cybercrime Working Group to oversee preparatory processes for the creation of legislation on cybercrime. A 15-member committee was set up to oversee the drafting of a bill and, by early 2011, the draft was completed and presented to the Senate for review and approval.

The bill was eventually signed into law on May 5 2015 by the immediate past president Goodluck Jonathan, 14 days before the inauguration of current president Muhammadu Buhari.

The Nigerian Cybercrime Act serves to regulate a broad array of internet and computer-based offences, ranging from illegal communication using electronic messages to illegal interception of messages, computer trespass and cyber-terrorism.

One provision that is very advantageous to IP owners is that on cybersquatting. By virtue of this provision, trademark and brand owners alike can now have recourse to express statutory backing when seeking to protect their rights in the cyberspace.

Section 25 of the act deals with the intentional use of a name, business name, trademark or domain name, including words and phrases registered or owned by any individual, corporate body or any tiers of government, on the Internet or any other computer network. Section 25 deals specifically with the unauthorised use of IP rights with the intention of interfering with the rights of the legitimate prior user/owner. Pursuant to this section, domain names deriving from registered trademarks are protected on the Internet, and the infringement of rights tied to these domain names is punishable under the law. The Cybercrime Act provides for a term of two years' imprisonment upon conviction or, alternatively, a fine of N5,000,000 as punishment for violating the provision.

Also significant is the fact that there are currently no judicial precedents (or ‘stare decisis’) which may guide judicial officers when reaching decisions relating to cybercrime. This is effectively a novel field in Nigerian jurisprudence. Judicial officers may follow the decisions of the English courts, but it is not certain that the Nigerian Cybercrime Act is modelled after the English cybercrime law. Unless this is the case, English judicial precedents can only be of persuasive effect.

There is also confusion as to which regulatory and/or enforcement body in the country should have sole responsibility for enforcing the provisions of the act. This was one of the issues raised at the last Anti-Counterfeiting Collaboration/International Trademark Association roundtable held in October 21 2015 at the Four Point Hotel in Lagos. After a series of deliberations, it was agreed that, as the act was a federal statute, it was best for all agencies to have power of enforcement with respect to the provisions of the act. This would ensure that the strain would not be borne by a single agency.

Based on the above, the application of the provisions of the Cybercrime Act to regulate the cyber environment requires the implementation of strict measures. This was also one of the key issues discussed at the roundtable, where it was decided that the Cybercrime Act should have the same legal backing, in the form of enforcement, as other laws on IP rights.

The Nigerian ICT sector has welcomed this new legislation with open arms, although there are still some concerns about the restriction of certain internet-based freedoms, as well as the fairness of the provisions. It remains to be seen how the act is applied and the spirit of the law is tested. Until then, the Nigerian public has to make do with the existing legislation.

Lara Kayode, O Kayode & Co, Lagos

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