Stakes and evolutions of law in cyberspace

"Digital and Law: strategies of power, IT and Law in cyberwar": such is the title of a conference organised in May 2020 by the Paris School of Economic Warfare, which sums up well the heart of the subject we will address here. It will be a matter of exploring the dialectical relationship that exists between law and cyberspace, and of drawing the consequences for Africa. In this context we will borrow the definition of cyberspace proposed by Pierre Lévy, who in his view "designates the universe of digital networks as a place of encounters and adventures, a stake in global conflicts, a new economic and cultural frontier. […] Cyberspace designates less the new media of information than the original modes of creation, of navigation in knowledge and of social relations that they make possible."

As for the notion of law, we understand it here as "the set of rules that govern human conduct in society, social relations". It is the regulating element of any modern society, and very often the product of a vision of the world. Yet, as we can all see today, cyberspace, through digital technologies, continually transforms almost every sector of activity and every aspect of our daily lives, which are governed by rules of law. We thus see our ways of consuming, producing, trading, learning, defending ourselves, accessing culture, socialising, etc., changing.

During the conference mentioned above, the panel of multidisciplinary experts (lawyers, entrepreneurs, etc.) noted and confirmed this form of entanglement between law and cyberspace, attempting to assess some of the implications for various actors in their ecosystem. It was a question, for example, of seeing to what extent to support European start-ups to better protect them against the extraterritoriality of American law in cyberspace, or to help public authorities build proposals for adapting existing European and international legal norms (international humanitarian law, the law of armed conflict, etc.) in cyberspace.

Having no legal expertise myself, I will not give you technical legal arguments here. I leave it to African jurists to pick up the ball on this point. My aim will be to highlight the various stakes observed from a strategic perspective, in order to stimulate the development of an African point of view on this vital subject.

The legal stakes of cyberspace for Africa

It is not uncommon, however, to hear of cyber-law or the law of cyberspace in Africa. Some jurists and academics on the continent have indeed written and worked on the subject, such as the Congolese Dr Kodjo Ndukuma Adjayi, a recognised specialist (author of the book Cyberdroit, Télécoms, Internet, e-commerce: une contribution au droit congolais, 2009). Moreover, in recent years, master's degrees in African cyberspace law or in digital law in Africa have been emerging in several universities and grandes écoles (such as Gaston Berger University in Saint-Louis, Senegal).

At the level of African states and the regional or continental organisations grouping them, we are also witnessing a somewhat laboured but gradual updating of the legislative and regulatory framework to take account of digital developments and align with the information society. According to the Global Cybersecurity Index (2018 report), several countries are putting in place a set of laws on cybersecurity and the fight against cybercrime, the protection of personal data and the protection of children online, the regulation of online commerce, etc. The African Union convention on the matter, adopted in Malabo in 2014, also marks an important step in this process (even if it has not yet been signed and ratified by most states).