GHANA Law and Practice Contributed by: Olusola Ogundimu and Esohe Olajide, Integrated Legal Consultants
advertisements. Where there is a breach, remedies include fines, or a term of imprisonment upon sum - mary conviction. The Security and Exchange Commission (SEC) The SEC regulates advertisements issued or dis - seminated to the public offering services of dealers or investment advisers or offering securities for sale to or from the public. L.I. 1728 spells out the scope of advertisement in relation to investments and securi - ties and what is prohibited, to ensure they are fair and not misleading to the public. Persons who contravene these regulations are liable to penalties that include interventions, the revocation, suspension or restriction of licences by the SEC, or a fine of GHS1 million, as stipulated in Regulation 44. The Advertising Association of Ghana (AAG) The AAG regulates advertisements of its members who are practitioners or stakeholders in the industry, through its Code. The Code covers various aspects of advertising, including content, accuracy and fairness. Where members breach its advertising standards, the AAG can issue warnings or advisories to the affected parties. It may also make recommendations regard - ing corrective measures or amendments that such parties may make in order to make the advertising content compliant. Members who continue to violate the Advertising Code of Conduct may be suspended or expelled from the AAG. 1.3 Liability for Deceptive Advertising Some of the laws indicated in 1.1 Primary Laws and Regulations provide that advertising must be accu - rate and must not mislead, either directly or impliedly. Therefore, any organisation that is required to seek approval before an advertisement is placed would be held liable for deceptive advertising where such deception occurs within a particular sector by the appropriate regulatory agency where its rules specifi - cally prohibit misleading advertising. In Regulation 40 (9) of L.I. 1728, the SEC provides that any person who contravenes the provisions on advertising in the regulations shall be liable for an intervention, the payment of a penalty of GHS1 mil - lion, a revocation, a suspension, or such restrictions on a licence as the SEC may impose.
Similarly, in Article 28 of its Code, the AAG provides that advertisements should not contain false rep - resentations that may confuse or cause others to believe that products/services or advertisements of another entity/person are connected to or belong to the advertising practitioner, or vice versa. Where members breach its advertising standards, the AAG can issue warnings or advisories to the affected par - ties. It may also make recommendations regarding corrective measures or amendments that such parties may make to the advertising content so as to make it compliant. Members who continue to violate the Advertising Code of Conduct may be suspended or expelled from the AAG. Likewise, the FDA will hold the sponsor, the adver - tising agent and the advertising media organisation jointly and severally liable for any breach of its adver - tising rules. 1.4 What Is Advertising? In Ghana, what constitutes advertising is determined by the specific regulation or law. For instance, in the FDA Regulations on Advertising, this consists of the publicising of goods and products in any form of notices in circulars, label wrappers, catalogues and price lists, newspapers, magazines, documents made orally or by means of projected light, sound record - ings, radio and television advertising, mentions by radio presenters, bill boards, mobile vans, social media and writings. The list of what is considered as advertising by the SEC Regulations 2003 is not as exhaustive as the FDA’s list. The SEC defines advertising to include eve - ry form of advertising, including publications, notices, exhibition of photos or film discs, and generally any public notices, including the publication of research findings. Act 721 and the GC’s Guidelines on Advertising appear to be silent on what is considered as adver - tising, despite their role in regulating the practice; this also applies to the AAG Code. It is worth noting that the proposed Advertising Council Bill that is pending before parliament defines what constitutes advertis - ing as well as advertising services in its interpretation section.
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