In the late nineteenth and early twentieth centuries, the foremost and perhaps most advanced means of communication was the telegram. The story of the telegram began in 1837 when Samuel Morse161 operated the first telegraphic transmission.
Prior to the invention of the telegram, there was a progression from human couriers to the postal service, which is still very much in use today. Early primitive societies used couriers to move messages and information within their settlement or across borders to other settlements. In a typical Nigerian village in the early part of the 20th century, the town crier was the official disseminator of public and private information. It is still possible today to see the last vestiges of this very basic communication network in some rural villages in Nigeria and presumably, also in other African nations, but their days are certainly numbered.
Over a period of time as societies became more settled, centralised administrations were put in place and the human couriers gave way to government run postal services. Commercial activities and contractual relations were carried out and
160 See n 158 above. A good example of the efforts to harmonise cross-border laws is the EU Directive 95/46/EC See Michael Privacy and Human Rights 33.
161 Encyclopaedia Britannica ―Telegraph‖ 2010.
50 created through the aid of hand-written letters. Inevitably, the law was called upon to resolve conflicts arising out of such personal or contractual relations created through the post. The modern law of contract is still regulated by rules and regulations fashioned in a time when commercial activities were undertaken in an age of relatively low-key technological advancements. For example, the ‗postal rule‘ relating to acceptance of an offer communicated through the post evolved over the years through judicial law-making in England in the nineteenth Century.162 After the novelty of postal service and its impact on business and personal relations had received the judicial stamp of approval, another technological breakthrough in communication came on the scene.
2.4.1.1 Telegram
The invention of the Morse code by Samuel B. Morse in 1835163 introduced the telegram as a quicker means of communication. The obvious advantage of a telegram over a letter sent by post was that it was faster and facilitated communication by making it possible to send messages to those places where postal services could not reach. As inevitably happens with new inventions and their impact on human relations, the telegram created a few conflicts in the market place. The law, particularly common law, is slow to change unless something stirs it into action. It did not take a long time before the validity of the telegram, as well as the use thereof to create binding legal relations, were scrutinised by a court.
It appears the earliest judicial pronouncement on the validity of a telegram as a means of conducting binding business transactions, was the American case of Durkee v Vermont in 1856.164 The Vermont Supreme Court held that the telegram was a proper proof of an original statement. Judicial pronouncements in later cases and in different jurisdictions have confirmed the validity of the telegram as a means
162 ―The rule, put simply, states that an acceptance is effective once it is posted, rather than when it is actually received. The essence is that the acceptor has entrusted his communication to a third party or put the communication beyond his control.‖ See Edwards and Waeld (ed) Law & The Internet: Regulating Cyberspace 98.
163 See n 161. The Morse Code was invented in 1835 but the first telegraphic transmission using the code was in 1837.
164 Durkee v Vermont C Ry 29 Vt 127 (1856). See also Trevor v Wood 36 NY 307, 93 Am Dec 262 (1867).
51 of communication.165
2.4.1.2 Telex
The telex is an international telegraphic message transfer service made up of a network of tele-printers. It originated in the UK in the 1930s and from there spread to the rest of the world.166 Actually, it is the telegraph that evolved into the telex system in which machines eliminated the need for coding and decoding the messages. Users can type a message on one telex machine and the identical message would appear on the recipient‘s machine carried over telegraph and telephone lines.
The telex also has received several judicial stamps of approval, for example, in the case of Entores Ltd v Miles Far East Corporation167 the court had to decide when a contract is formed where a telex is involved. The court held that it is formed when the acceptance telex is received.
2.4.1.3 Telephone
Alexander Graham Bell invented the telephone in 1876 barely 18 years after the introduction of the telegraph.168 It was meant to be an improvement on the telegraph; Bell‘s patent was titled ―Improvement in Telegraphy‖.169 His device was designed to transmit human voice over waves instead of electrical clicks like the telegraph. One fundamental difference between the two devices is the fact that while the telegraphic message is recorded in a more or less permanent form on the telegraph sheet, the telephone conversation, though instantaneous and therefore faster than the former, did not leave a record of what was discussed on the phone.
This shortcoming accounted for an initial resistance to the telephone by some conservative businessmen who feared that such a medium without the capacity to
165 Steven Jaques & Co v Mclean (1880) 5 QBD 346.
166 See Beauchamp K History of Telegraphy 399.
167 (1955) 2 All ER 493; see also Brinkibon Ltd v Stahag Stahl und Stahlwarenhandelsgesellschaft mbH (1982) 1 All ER 293.
168 Casson The History of the Telephone 1-12.
169 Ibid.
52 keep a record of transactions conducted through it, would be a dangerous device to toy with.170
However, the efficiency and versatility of the telephone was in the end enough to win over the most conservative businessmen. The telephone has become the most prevalent means of communication worldwide. Today, the telephone is a basic prerequisite for any business undertaking and it is the bedrock on which the fax and email capabilities in the business world are built.
2.4.1.4 The fax machine
A fax machine171 is used in a facsimile transmission. This is a cheaper and easier way to transmit text and graphics over distances, by means of wire or radio waves. The machines are designed to scan printed text and graphic material before transmitting them through the telephone network to similar machines at the receiving end, where the documents are reproduced as near to the original as possible. Because of their low cost, reliability, speed and simplicity of use, fax machines have made a great impact on business and have revolutionised the way in which business is conducted today.
2.4.1.5 Electronic mail
The e-mail172 is now the most popular component of the computer/Internet interface.
It is a method of transmitting data, whether text or graphic files quickly from one computer to another over a network. The use of e-mail became widespread in the last decade and it has become a major communication tool in business and personal relationships. E-mail users send and receive messages from individual personal computers through the use of e-mail programmes.173 It is in fact now possible to send
170 See n 168 at 16-19.
171 Encyclopaedia Britannica ―Fax‖ 2010.
172 In 1971, Ray Tomlinson of BBN invented the e-mail programme to send messages across a distributed network. The original program was derived from two others: an intra-machine e-mail program (SENDMSG) and an experimental file transfer program (CPYNET). In 1972, Tomlinson modified the e-mail program for ARPANET where it became a quick hit. The @ sign was chosen from the punctuation keys on Tomlinson's Model 33 Teletype for its "at" meaning. See Zakon Hobbes Internet Timeline 10.2 [online].
173 Examples of e-mail programmes include Microsoft Outlook, Outlook Express and Eudora.
53 faxes by e-mail and text messages to mobile or cell-phones through the short message service (SMS) which underscores the versatility of this tool of communication. To say that e-mail has had a profound impact on the world at large is to state the obvious. It has become virtually the single most important means of communication in the world today; previous methods of transmitting information such as regular mail, or ‗snail mail‘ as it is now derisively called, telephone, courier, fax, television and radio have been largely eclipsed by e-mail. In the case of the new frontier of commercialism, electronic commerce (or e-commerce), e-mail is the preferred means of communication. It is easy to understand why this is so: the paperless nature of e-mail communication translates into corporate productivity and profitability by reducing operating costs and time usually spent on conventional paper-based communication.174
All the technologies discussed above have one thing in common; they are all used in the transmission of personal and business information and are implicated in trans-border data flows. A country‘s ability to integrate into the global network economy and participate meaningfully in that system is largely dependent on the country‘s level of ICT penetration and connectivity. The greater the country‘s level of ICT infrastructures, the greater its capacity to participate in trans-border flow of data.
The country must also be able to regulate the flows of data in and out of its borders aided by these technologies. For Nigeria, the question is whether the country should wait until it attains a critical mass in ICT penetration (bearing in mind the current low levels) before harmonising its laws and regulatory regimes for secure trans-border data flows, or do so now, with the expectation that the penetration of ICTs will continue to rise. For reasons that would be elaborated in chapters 7 and 8, it is the view of this writer that the time to harmonise the regulatory regime with global standards is now.
174 Gindin Guide to E-mail and The Internet in the Workplace [online].
54 3. ICTs AND THE INTERNET: THEIR IMPACT ON GLOBAL