GHANA Law and Practice Contributed by: Olusola Ogundimu and Esohe Olajide, Integrated Legal Consultants
1.5 Pre-Approvals Pre-approvals are required to be obtained from the relevant agencies before advertisements can be run in Ghana. For instance, the FDA pre-approves all advertisements in relation to foods, drugs, cosmetics, household chemicals and medical equipment, wheth - er print, outdoor or in the media, while the Gaming Commission pre-approves advertisements in relation to gaming and promotions. Therefore, advertisements in these sectors cannot run without pre-approval. 1.6 Intellectual Property and Publicity Rights The following laws in Ghana protect the rights of the registered owner of an intellectual property (IP) right and give owners exclusive rights to prevent others from using their IP without their prior consent. • The Copyright Act 2005 (Act 690) provides for the infringement of copyright when a right is used with - out the consent of the owner and such usage is not within the scope of permitted use of the copyright. Article 42 stipulates that offenders will be liable on summary conviction to a fine of between 500 and 1,000 penalty units or a prison term of three years, or both. Where infringement continues, a further fine of between 25 and 150 penalty units will apply for each day that the offence continues. • Act 690 does not specifically provide for the use of an individual’s pictures or likeness, but this may be covered by photography, which is listed under artistic works, while the individual’s voice will ordinarily be covered under sound recording where the voice was fixed in a medium with musical or spoken words. • The Trade Marks Act 2004 (Act 664), as amended, regulates any unauthorised use of trade marks. While not specifically providing for advertising, it does prohibit the application of false trade descrip - tions to goods or causing the infringement of a trade mark. Offenders will be liable to a fine not exceeding 500 penalty units or a prison term of two years. • The Protection Against Unfair Competition Act 2000 (Act 589) prohibits any act in the course of commercial activities that causes or is likely to cause confusion about the activities or products/ services of another enterprise, or the presentation of a product that amounts to unfair competition.
Confusion may be regarding trade marks or the presentation of products or services. • Act 589 also covers acts that are likely to mislead the public about the activities, goods or services of an enterprise that may arise out of advertising products, services or packaging as constituting unfair competition. Act 589 provides for remedies such as injunctive relief, damages and court orders to prevent unlawful acts. 1.7 Self-Regulatory Authorities The Advertising Association of Ghana (AAG) is an industry self-regulator of advertising practices. Its powers are limited to its members, and its aim is to ensure ethical and professional advertising practices amongst practitioners in Ghana. Its Code of Profes - sional Conduct and Ethics covers various aspects of advertising, including content, accuracy and fairness in advertising. As a self-regulator, the AAG allows for voluntary adherence to standards and ethical guide - lines in the industry by advertisers, agencies and other stakeholders. As part of its process, it reviews any complaints and concerns regarding advertising prac - tices that are brought before it. Where there is a breach of its advertising standards by members, the AAG can issue warnings or advisories to the affected parties. It may also recommend cor - rective measures or amendments such parties may effect to their advertising content to make it compli - ant. Where members continue to violate the Adver - tising Code of Conduct, they may be suspended or expelled from the AAG. 1.8 Private Right of Action for Consumers As the Advertising Council Bill is currently pending before parliament and there is no specific provision in relation to a consumer’s right to challenge advertis - ing practice, any such issues in relation to advertising would need to be made by presenting a complaint to the relevant authority regulating advertising in a spe - cific sector, such as the FDA, SEC, GC, NCA or AAG, if the offending party is a member of the association. The consumer’s issues will be addressed and offend - ing parties will be sanctioned based on the powers and provisions of the applicable law, regulation or guidelines.
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