The Need for Harmonised and Specialised Global Legislation to Address the Growing Spectre of Cybercrime

• Author: Vinesh Basdeo,Rapuluchukwu Ernest Nduka
• DOI: 10.25159/2522-6800/8112
• Published date: 01 December 2021
• Date: 01 December 2021
• Pages: 1-22

Article

Southern African Public Law

https://doi.org/10.25159/2522-6800/8112

https://unisapressjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online), 2219-6412 (Print)

#8112 | 22 pages

© Unisa Press 2022

The Need for Harmonised and Specialised Global

Legislation to Address the Growing Spectre of

Cybercrime

Rapuluchukwu Ernest Nduka

https://orcid.org/0000-0002-8617-1833

J. R. Nduka and Co.

Nnamdi Azikiwe University, Nigeria

bishopraps@gmail.com

Vinesh Basdeo

https://orcid.org/0000-0002-5149-7198

University of South Africa

Abstract

Modern advances in technology have made the world a global village, and the

impact of this on almost all spheres of life and society is phenomenal. The rapid

growth of information and virtual technology in most spheres of life and society

as well as the interconnection of computers through super highways and

international computer networks have made cybercrime more diverse, more

dangerous, more global and more challenging to fight. The ubiquity of the

internet and the connectivity of virtually every computer to the global

community hold ramifications that have yet to be determined. Cybercrime does

not require physical proximity between the victim and the perpetrator for the

commission of the offence. Cybercrime is unbounded, in that the victim and the

perpetrator can be in different cities, states, or even countries. Deterring and

punishing cybercriminals require an international legal framework to

investigate and prosecute cybercrime.

Keywords: Cybercrime; criminal justice; comparative analysis; legislative framework

Nduka and Basdeo

2

Introduction*

Academics and practitioners lament the fact that the criminal justice field is simply not

keeping pace with crime in the computing context.

1

The threat posed by the prevalence

of cybercrime is felt not only by developed countries but equally by developing

countries. The global nature of cybercrime dictates that any legislative intervention

adopted to tackle cybercrime should be a global initiative requiring global co-operation.

2

Many legal scholars have advocated for a globally harmonised cybercrime legislative

framework which should be driven by an international legal entity such as the United

Nations.

3

Unfortunately, evolving a regional or national cybercrime legislative

framework has been easier than creating an international harmonised one. For instance,

in 2010 a proposal for the emergence of a global cybercrime treaty was rejected by the

United Nations when there was disagreement between Russia, China and a few

developing countries, on the one hand, and the United States, United Kingdom, Canada

and the European Union on the other.

4

This article observes that the apparent divergence in the various existing cybercrime

taxonomies and legislative frameworks contribute to the growing menace of

cybercrime. This article also posits that reliance on national or regional legislative

initiatives to tackle a global threat is inadequate and only a global legislative framework

will adequately address the impact of cybercrime. Further, this article highlights

differences in cybercrime taxonomies and legislation between countries and identifies

the inherent disadvantages these differences pose in forming a unified front by various

countries in the fight against cybercrime. This article proposes the use of a common

taxonomy to address the issue of cybercrime and it also focuses on the need for

harmonised cybercrime legislation. It analyses various steps already taken by

international and regional bodies to create a harmonised cybercrime treaty and the

attendant failures. Finally, this article concludes with a proposal for a harmonised

legislative framework and proffers necessary steps that will lead to the proposal coming

to fruition.

* Part of this article is based o n the LLD thesis submitted by Rapuluchukwu Ernest Nduka in

completion of his LLD thesis at the University of South Africa. The authors are grateful for the

assistance provided by the National Research Foundation in the completion of this article.

1

Robert Moore, Search and Seizure of Digital Evidence (LFB New York 2005) 1.

2

Brian Harley, ‘A Global Convention on Cybercrime?’ (2010) 1(3) Columbia University LJ

<http://www.stlr.org/2010/03/a-global-convention-on-cybercrime/> accessed 14 December 2019.

3

Xiang Li, ‘International Actions against Cybercrime: Networking Legal Systems in the Networked

Crime Scene’ (2007) 4(3) Webology <http://www.webology.org/2007/v4n3/a45.html> accessed14

December 2019.

4

Greg Masters, ‘Global Cybercrime Treaty Rejected at UN’ (S C Magazine, 2013)

<http://www.scmagazine.com/global-cybercrime-treaty-rejected-at-un/article/168630/> accessed 14

December 2019.