Electronic Commerce Transaction In Nigeria: A Critical Legal Literature Review
This paper conducts a critical legal literature review on e-commerce transaction issues in Nigeria. The paper focuses much on pressing legal issues concerning data protection of e-consumers and unfair trade practices exhibited by unscrupulous e-traders. The paper also examines issues concerning consumer protection institutions with a view to assessing their effectiveness in protecting consumers in the country. The paper adopts a doctrinal research methodology in achieving its objective. The paper reveals that e-commerce contributes immensely to the global economy. That Nigeria stands to derive a lot of economic benefits from e-commerce transactions. That unfair trade practices and data protection as well as institutional problems pose a serious threat to the Nigeria consumers who desire to utilise the Internet for commercial transactions. The paper, therefore, recommends a systematic legislative reform that will address online data protection and unfair trade practices problems in the country. The paper also recommends holistic reforms in the institutional infrastructure for e-commerce and consumer protection in the country.
Keywords: Data ProtectionUnfair Trade PractisesE-commerceConsumerNigeriaMalaysia
Electronic commerce (e-commerce) is of growing importance to countries, businesses and consumers. E-commerce is the buying, selling and even advertisement of goods and services electronically via the Internet (Chaffey, 2003; Kalakota & Whinston, 1997; Pearsall, 2002; Zwass, 1996). E-commerce transactions take place 24 hours a day and seven days a week (24/7) for consumers worldwide (Ozuru, et al., 2012). E-commerce is rapidly increasing around the globe (Omar & Anas, 2014) as consumers can now make online purchases of goods and services from their homes and offices (Omar & Anas, 2014; Ozuru et al., 2012; Tiwalade, et al., 2014). E-commerce affords consumers (e-consumers) the opportunity to compare products, information and prices conveniently (Omar & Anas, 2014; Ozuru et al., 2012). Above all, it affords the e-consumers have access to a wider global economic market at little cost (Bamodu, 2004).
Oppenheim and Ward claimed that the present primary reason people carry out business on the Internet is the convenience involved in the process (Oppenheim & Ward, 2006). That is why every day, thousands of transactions take place on the Internet that cumulatively involves millions of US dollars (Art., 2010). This development came as a result of the breakthrough in the modern-day Information Communication Technology (ICT).
In this regards, ICT and e-commerce could be utilised by countries to actualise the 2016-2030 UN Sustainable Development Goals (SDGs), particularly in the fight against extreme poverty and the pursuit of economic development (The United Nations, 2017; UN Economic Commerce and Development, 2002). Consequently, the unfolding benefits of ICT generally and e-commerce, in particular, to developing countries like Nigeria and Malaysia
In Malaysia, for example, Datuk Seri Ismail Sabri Yaakob, Minister of Domestic Trade, Co-operatives and Consumerism said that in 2010, 1.1 million people in the country carried out e-commerce (Putra, 2013). Accordingly, e-commerce transactions worth, RM 1.8 billion were recorded in 2010 and in the year 2014, the amount increased to RM 5 Billion (Malaysia Complaints: 2014 Annual Consumer Complaint Report, 2015). According to the 2014 Malaysian National Consumer Complaints Centre (NCCC) Reports, the amount is expected to further increase to RM 13.3 billion by 2018 (Admin2, 2017). Similarly, in 2014 alone, Nigeria has recorded over USD 2 million worth of Internet transactions per week and close to USD 1.3 billion monthly with an estimated growth rate of 25 percent annually (Abiloye, 2015). Hence, e-commerce advancement opens a lot of opportunities for any country that is willing to take its advantages.
Unfortunately, this technological advancement throws up serious legal, institutional as well as infrastructural challenges to all countries in the world. Hence, (Bali, 2004) argued that the existing legal norms are becoming outdated. Thus, realising the challenges and the positive impact of e-commerce on the global economy, the UN as far back as 1996 adopted the United Nations’ Commission on International Trade Law (UNCITRAL) Model Law on E-commerce (the Model Law). The UN adopted the Model Law to serve as a pioneer e-commerce legislation for countries to copy and enact in their respective domains. The primary aim of the Model Law is to remove obstacles coming in the way of electronic documents particularly regarding their enforceability before courts of law (Akomolede, 2008). Additionally, the Model Law aims at ensuring that countries across the globe have uniform e-commerce legislation (Akomolede, 2008). Accordingly, the UN enjoined its Member States to enact laws and establish institutions that conform substantially to the provisions of the Model Law (Akomolede, 2008). Equally, the UN Conference on Trade and Development (UNCTAD, 2015) made a similar call but with specific emphasis on consumer protection. This is to the effect that countries that are preparing to enact or revise their consumer protection laws for e-commerce may consider aligning their legislation with the
For instance, as of 24th August 2017, the provisions of the Model Law have been adopted
Despite the progress so far recorded in Malaysia as noted above, the situation in Nigeria is different. Nigeria is yet to enact the Model Law. Besides, Enadeghe (2013), argued that hitherto there is yet to be a holistic or adequate legal and institutional framework for e-commerce and consumer protection in the country (Enadeghe, 2013). In this regard, Akomodele (2008) argued that due to lack of adequate legal and institutional frameworks in this area, e-commerce consumers face many challenges in Nigeria. Akomodele further claimed that the problem has been compounded particularly, by some legal issues that have been addressed in more advanced and sophisticated nations (Akomolede, 2008). But which issues are still being struggled with in Nigeria. These issues include jurisdictional and choice of law, fraudulent and unfair trade practices, data and privacy protection, evidential and regulatory among others (Akintola, et al., 2011; Akomolede, 2008). More so, there are also other infrastructural issues or challenges posing a serious threat to the growth and development of e-commerce in Nigeria (Aghaunor & Fotoh, 2006; Ahmadu, 2010). Scholars have identified lack of reliable electricity supply (Adamu, 2014; Akintola et al., 2011; Sambo & Garba, 2012), poor Internet connectivity (Abubakar & Adebayo, 2014; Enadeghe, 2013; Ozuru et al., 2012), and poor delivery system (Akintola et al., 2011; Oluchi, 2015) of goods and services as some of such issues. Hence, it is evident that the emergence of e-commerce raises serious legal issues in Nigeria which must be tackled for the country and its citizens to benefit from its potentials (Akintola et al., 2011). It, therefore, remains important to address these problems cum issues so as to enable the country to maximise the opportunities which ICT revolution offers to the Nigerian economy.
Consequently, this paper will examine the legal and institutional issues relating to e-commerce in Nigeria. Hence, the emphasis would be made on such legal issues as data protection and unfair trade practices. The paper will also examine the institutional frameworks put in place for the protection of the e-commerce consumers in Nigeria. This would be done to find out whether the said legal and institutional frameworks are adequate in addressing e-consumer related issues in the country. Meanwhile, the outcome of this paper is likely to suggest the need for specific reforms in the Nigerian legal and institutional frameworks for the protection of e-commerce consumers as such recommendations to that effect would be proffered at the concluding part of the paper.
According to Ridley, (2012) a literature review is that part of the academic work where a researcher makes extensive reference to other researchers and theories. Literature review avails the researcher the opportunity to engage in a written dialogue with previous researchers in his/her chosen research area (Nuruddeen, 2015). A literature review enables a researcher to identify the theories and previous research which have influenced his/her choice of research topic and the methodology he/she adopts (Ridley, 2012). A researcher can use the literature to show that there is a gap in previous studies. Therefore, literature review affords a researcher the opportunity to identify a research gap or question which needs to be addressed.
The literature review in the context of this paper revolves around two fundamental key issues. That is the definition of operational terminologies. Then followed by a brief review of the issues surrounding legal and institutional frameworks for e-commerce in Nigeria.
Definition of Operational Terminologies
Legal and Institutional Issues affecting E-commerce in Nigeria
Since the central focus of this paper is on legal and institutional frameworks for e-commerce in Nigeria, the followings sub-heads would expose debates among scholars on the subject matter.
Inadequacy of Legal Framework
Most of the existing rules and laws in Nigeria lag behind the development of e-commerce in particular and ICT as a whole. Studies on e-commerce in Nigeria such as the one carried out by Akomolede, (2008); Nwokpoku, (2014) respectively supported the conclusion that the Nigerian legal system lags behind in terms of ICT-based legislation. Bamodu (2004), further argued that the existing statutory laws are quite inadequate to address the e-commerce legal issues in the country. In fact, (Ahmadu, 2010) described the existing Nigeria’s legal framework for e-commerce as “a sketchy picture of the semblance of a legal environment.” Jemilohun & Akomolede (2015), maintained that significant efforts at the regulation of e-commerce and related issues are still at the stage of draft bills pending before the National Assembly.
Moreover, (Monye et al., 2014) reported that the Nigerian consumers are not comfortable with the Nigerian laws relating to consumer protection. This is because the laws are too old and inadequate to protect the interest of the contemporary consumers such as the e-commerce consumers (Monye et al., 2014). In the words of Udeh, Nigeria needs an adequate legislation that will protect e-commerce businesses and consumers to drive growth and boost opportunities in the sector (Nwokpoku, 2014). For example, Enadeghe (2013), argued that the existing legislation such as the CPC Act 1992 and the
Privacy and Data Protection
Given the openness and accessibility of the Internet, Okoro & Kigho (2013) observed that the protection of data and privacy has been a source of concern for Internet users. Akomolede (2008) stated that this remains a threat to e-commerce in Nigeria. Nigerian consumers who want to transact business via the Internet will want their privacies regarding data to be protected, but this is not possible. This is because any information fed into the Internet could be accessed anywhere in the world by other persons using the Internet. Perhaps, that is why Enadeghe (2013) observed that Nigerians are always security conscious and are very careful when disclosing their personal information. The majority of Nigerians do not release their personal information, especially when related to their finance. Enadeghe (2013) has attributed this to lack of Internet privacy, lack of technology and legal structures to ensure data protection.
In fact, due to lack of trust, banks in Nigeria frequently caution customers not to disclose their ATM Personal Identification Numbers (PINs) to any person including the banks’ staff and close relations. Perhaps, that is why Okoro & Kigho (2013) observed that many consumers nowadays source for information online but make purchases the traditional way. In the alternative, consumers prefer to place orders online but make payment upon delivery of the physical goods (Okoro & Kigho, 2013). Consumers feel safer with the traditional way or payment upon delivery.
Section 37 of the
Unfair Trade Practices
Despite the problems of privacy and data protection, Nigerians do participate in e-commerce transactions that have connections to countries other than Nigeria. At some point in time dispute is inevitable. Parties usually make reference to the terms and conditions governing the transactions to resolve the dispute. However, (Bello et al., 2012) argued that most of the times, the conditions are contained in a standard form that usually favours the powerful electronic traders (e-traders). This is confirmed by Bamodu (2004), who said that most e-traders have a particular web page outlining lengthy terms and conditions for contracts concluded on their website. The e-consumers might not be aware of or might not notice or even bother to read such terms and conditions (Bamodu, 2004). For example, the Amazon (online retailers) provide conditions on their website to the effect that in the event of any dispute regarding any transaction concluded on their website, the law of Washington shall be used to resolve such dispute. This kind of condition appears detrimental to a Nigerian consumer who might, without the knowledge of such conditions, conclude a contract on the website. For he/she might not get the wherewithal to go to Washington and seek for redress where there is any breach on the part of Amazon. In this respect, Nuruddeen (2011) argued that the Nigerian CPC (being the principal regulatory body for consumer protection in Nigeria) has a minimal role to play in the circumstance. According to Enadeghe, (2013) the law establishing CPC makes no specific provision concerning e-commerce.
Bamodu (2004), argued that this kind of unequal bargaining power and other unfair trade practices are checkmated in many countries by passing appropriate legislation. For example, in Malaysia, Amin & Mohd Nor, (2013) argued that unequal bargaining power and other unfair trade practices against e-consumers have been addressed by Part IIIA of the
Problems Associated with Institutional Framework for E-commerce and Consumer Protection: CPC in Focus
The UN enjoined its member states, Nigeria inclusive to come up with the institutional framework to facilitate e-commerce transactions and consumer protection in their jurisdictions. The need for an institutional framework to protect consumer's interest cannot be overemphasised. Suffice it to say that such institutional framework would boost consumer confidence in the emerging e-commerce transactions (UNCTAD, 2015). In the words of Bello
“without the state willing or able to define and protect property right, enforce contracts and prevent involuntary transactions, maintain a circulating medium and curtail monopoly and anti-competitive behaviour, there is no market in any real or meaningful sense.”
This inevitably calls for the establishment of consumer protection institution to govern the affairs of consumers generally and e-consumers by extension. It is worth noting that Nigeria has been setting up consumer institutions such as the NAFDAC, the SON, and CPC to protect the rights of consumers against unfair trade practices of traders and suppliers (Bello et al., 2012). Unfortunately, none of these bodies was established with a clear mandate to protect the interest of e-commerce consumers in the country (Enadeghe, 2013).
For instance, the CPC which was created by the CPC Act 1992 is the most direct consumer administrative agency in Nigeria. The establishment of the CPC is an important government policy, and it remains the most significant action targeted at consumer protection rights in the country (Bello et al., 2012). However, Enadeghe (2013) has observed that careful perusal into the mandate of the CPC under Sections 2 and 3 of the CPC Act 1992 will reveal that the CPC Act does not apply to e-commerce transactions. In this way, Abubakar & Adebayo (2014) emphasised the need for an effective institutional framework to govern the conduct of e-commerce in Nigeria. This is necessary because, according to Enadeghe (2013), an e-consumer can face problems like delay in delivery, delivery of wrong/defective goods or no delivery at all, etc. In this kind of situation, Nwokpoku (2014) lamented that such a consumer might not have any place to go and lodge a complaint or seek redress. Noting that the CPC Act 1992 has been in existence for over two decades without any amendment. This is unlike what we observed from the study conducted by (Amin & Mohd Nor, 2013) regarding progressive amendments to the Malaysian
E-Consumer Disputes Settlement Through the Nigerian Courts
In the event of any dispute, Ekanem, (2011) argued that the only option left for an aggrieved e-consumer is to resort to filing a civil action in a court of law. The courts are there to enforce consumer rights and award remedy appropriately (Ekanem, 2011). Unfortunately, studies such as the one conducted by (Jafaru et al., 2015a; 2015b) revealed that courts in Nigeria are already overburdened. Also, according to Nuruddeen
It is trite that the success of e-commerce depends on factors such as the legal and institutional frameworks established to ensure that the rights of e-consumers are adequately protected (Alhusban, 2014). It is believed that this would boost consumer confidence and trust in all the transactions he/she wishes to conduct via the Internet (Alhusban, 2014). Legal and institutional frameworks are needed the world over to tackle issues bedevilling e-commerce such as data and privacy protection, unfair trade practices, cybercrime and trans-border disputes among other things (Akintola et al., 2011). As noted above, the UN had since enjoined its member countries to enact laws and establish institutions that will protect the interest of public who use the Internet as a means of conducting commercial transactions (Akomolede, 2008). Thus, keeping pace with the legal challenges brought by the modern-day technological advancement (Hassan, 2012; Mohamed Yusoff, 2011; Putra, 2013).
Regrettably, in Nigeria, significant efforts at the regulation of related e-commerce activities are still at the stage of draft bills before the Nigerian National Assembly (Jemilohun & Akomolede, 2015). Hence, e-commerce stakeholders are agitating and crying for legal and institutional frameworks that will adequately protect them in online commercial activities. This will pave the way for an orderly conduct of e-commerce transactions in a manner that is fair especially to the consumers (Ugwu, 2015). In specific terms, the following are some of the legal concerns of persons who use the internet for commercial transactions in Nigeria.
Privacy and Data Protection
Studies on e-commerce in Nigeria support the conclusion that Nigerian legal system lags behind ICT based legislation and that the existing statutory laws are quite inadequate to address legal issues affecting e-commerce transactions (Akomolede, 2008; Bamodu, 2004; Nwokpoku, 2014). For instance, an investigation revealed that at the moment, there seems to exist inadequate legislation in the country targeted at e-commerce (Okoro & Kigho, 2013). This is the case both for consumer rights protection and issues relating to data protection and privacy invasion resulting from unauthorised use of personal information (Nwokpoku, 2015). Perhaps, that is why many consumers nowadays source for information online but make purchases the traditional way. In the alternative, the consumer may place orders online but make payment upon delivery of the physical goods (Okoro & Kigho, 2013; United Nations, 2004). This is because they feel that the traditional way guarantees privacy and safety of their business transactions (United Nations, 2004). Consequently, scholars have made a categorical call for an adequate data protection legislation in Nigeria that will ensure the protection of private information of individuals (Jemilohun & Akomolede, 2015; Jafaru, 2011).
Unfair Trade Practices
Despite the problems associated with privacy and data protection, Nigerians do participate in e-commerce transactions with either local and international merchants or traders. It is a well-known fact that disputes are unavoidable in all commercial transactions. Often, reference is made to the terms and conditions governing the transactions to resolve such disputes (Ahmadu, 2010; Bamodu, 2004). Most at times, the terms and conditions are contained in a standard form that favours the giant electronic traders (e-traders) (Bello et al., 2012). Besides, the conditions governing online transactions are lengthy which many e-consumers might not be aware of or might not notice or even bother to read (Bamodu, 2004). For example, the Amazon (online retailers) provide such conditions on their website. It is to the effect that in the event of any dispute concerning any transactions concluded on their site, the law of Washington shall be used to resolve the dispute (Bamodu, 2004). This kind of condition is detrimental to, for example, a Nigerian consumer who might, without the knowledge of such conditions, conclude a contract on the website. For he/she might not get the wherewithal to go to Washington and seek for redress in the event of any default on the part of Amazon.
Bamodu, (2004) argued that this kind of unequal bargaining power and other unfair trade practices are checkmated in many countries by passing appropriate legislation. Some of these countries include Malaysia (Amin & Mohd Nor, 2013) and European countries (Enadeghe, 2013). Does Nigeria have legislation checkmating the excesses of the powerful e-traders in the country? Moreover, are there institutions put in place by the Nigerian government to ensure adequate protection of its e-commerce consumers in the country? Therefore, in order not to pre-empt the outcome of this paper, response to these questions would be provided in the following parts of the paper.
Consumer Protection Institutions in Nigeria
The Nigerian government set up institutions to protect the consumer against unethical commercial practices coming from the part of the traders. The National Agency for Foods and Drug Administration and Control (NAFDAC), the Standards Organization of Nigeria (established under the Standards Organization of Nigeria Act, 1990), and the Consumer Protection Council of Nigeria (CPC) are good examples of the institutions (Bello et al., 2012). Unfortunately, none of these institutions was set up with a clear or specific mandate to protect the interest of e-commerce consumers in the country. For instance, the establishment of the CPC under the CPC Act 1992 is said to be the most significant action targeted at consumer protection in the country (Bello et al., 2012). However, careful perusal into the mandates of CPC under Sections 2 and 3 of the CPC Act 1992 will reveal that the CPC Act 1992 does not apply to e-commerce transactions (Enadeghe, 2013). Besides, the CPC Act 1992 has been in existence for over two decades now without any amendment. Hence, is it not there the need to amend the Nigerian CPC Act 1992, to enlarge its mandate so as to keep pace with the advancement of the modern-day ICT?
In addition to institutions like the CPC, the Nigerian government also established courts and empowered them to protect and enforce the rights of aggrieved consumers in the country (Ekanem, 2011). The aggrieved consumers approach the court by way of civil suits (Ekanem, 2011). However, an ordinary consumer or e-consumer cannot approach the court for justice when his/her right is violated (Emelie, 2017). The cost of litigation in Nigeria which comprises of lawyer’s fees and court charges are outrageous (Emelie, 2017). Secondly, civil proceedings before Nigerian courts are full of technicalities and unnecessary delays (Nuruddeen, et al., 2017). This scares away many poor Nigerian consumers from approaching the court for justice. Thirdly, the settlement of e-consumer related disputes is quite different from ordinary consumer disputes. Often, expertise is required for an efficient adjudication of e-commerce and ICT related disputes (Ahmadu, 2010; Isaac, 2015; Ladan, 2014). Unfortunately, most of the judges operating the Nigerian courts are not computer literate, and so they tend to be conservative in their approach to such disputes (Ahmadu, 2010; Isaac, 2015; Ladan, 2014). On the whole, the judicial system of dispute settlement in the country is costly and time-consuming (Nuruddeen et al., 2017). The current setting of the legal system is not e-consumer friendly. In this respect, perhaps, Nigeria can learn lessons from other jurisdictions where e-consumer disputes are settled with expertise and without much delay and financial commitments.
Given the identified problems above, this study has formulated the following research questions:
What is the legal framework for the protection of e-commerce consumers in Nigeria?
Is the legal framework for the protection of e-commerce consumers in Nigeria adequate?
What are the institutional bodies put in place by the Nigerian government for the protection and enforcement of e-commerce consumer rights in Nigeria?
What practical lessons can Nigeria draw from international best practices in the field of e-commerce consumer protection?
Purpose of the Study
The purpose of this paper is to address the above-highlighted problems. The paper, therefore, would be of benefit to the Nigerian policy makers (particularly the legislature), the academic society and members of the Nigerian Bar Association (NBA). The business community (e-traders and e-consumers) and the general public, as well as consumer institutions in the country, would equally benefit from this paper.
The research methodology adopted by this paper is Doctrinal. In legal studies, the doctrinal methodology is the dominant research method of answering research questions (Ali, et al., 2017; Hutchinson, 2006; Yakin, 2007). The word “doctrinal" has its root from a Latin word "
On the other hand, the types of data for this paper consist of primary and secondary sources. Primary sources comprise of legislative enactments (statutes) and case law (judicial precedent). In legal research, the primary source is the most authoritative and the highest source of data. Similarly, the secondary data for this paper comprises of various forms of writing of legal scholars describing, interpreting, analysing and criticising either statutes or judicial precedents (Aboki, 2004). Thus, secondary sources of data can take the form of academic journals, government publications, bulletins, textbooks, dictionaries, encyclopaedias as well as Internet materials among other things.
From the preceding, therefore, it is evident that e-commerce contributes immensely to the global economy. It boosts the economy of any country that wishes to take the advantages brought by the breakthrough in the modern-day ICT. However, this may not be achieved without putting in place the relevant legal and institutional frameworks to protect e-consumers being the key players in e-commerce transactions. Studies have revealed that Nigeria lags behind in terms of legal and institutional frameworks for e-commerce and consumer protection. The Nigerian CPC Act 1992 does not make explicit provisions for the protection of e-consumers. The CPC Act 1992 has been in existence for more than two decades without any amendment. This is despite apparent unfair trade practices emanating from the part of the giant e-traders. Nigeria is also yet to address problems relating to data protection and privacy of e-consumers, and this discourages many Nigerians from participating in e-commerce transactions in the country. Not forgetting the fact that access to justice and redress mechanisms for e-consumers is fundamental when it comes to enforcement of their rights. However, studies have revealed that access to justice for e-consumers in Nigeria is not conducive. The judicial system in the country is costly and time-consuming.
This paper has carried out a critical legal literature review on e-commerce transaction issues in Nigeria. The paper laid much emphasis on such pressing legal issues as data protection of e-consumers and unfair trade practices exhibited by unscrupulous e-traders. The paper also examined issues concerning consumer protection institutions with a view to assessing their effectiveness in protecting consumers in the country. The paper, therefore, recommends systematic legislative reforms that will address online data protection and unfair trade practices problems. The paper also recommends holistic reforms in the institutional infrastructure for e-commerce and consumer protection in the country.
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VolumeEpSBS / Volume 52 - ILC 2017