GHANA Law and Practice Contributed by: Olusola Ogundimu and Esohe Olajide, Integrated Legal Consultants
5.2 Liability for Third-Party Content While the FDA Guidelines do not directly provide for liability for content posted by others on an advertiser’s site or social media, the advertiser is required to com - ply with the FDA Guidelines and the provisions of the Public Health Act 2012 (Act 815). When advertising products regulated by the FDA, such advertising must also be pre-approved. Failure to comply will leave the advertiser liable to penalties or other sanctions provided by the FDA Guidelines and the Act, where applicable. 5.3 Disclosure Requirements As far as is known, there are no special rules relating to online disclosures and disclosures in social media in Ghana. 5.4 Requirements for Use of Social Media Platforms There are currently no unique rules or regulations in relation to the use of social media platforms. The use of social media platforms is permitted in Ghana, pro - vided the rules relating to privacy, data protection and advertising under the applicable laws and regulations are complied with. 5.5 Influencer Campaigns and Online Reviews 5.5.1 Special Rules/Regulations on Influencer Campaigns Influencers are currently not permitted to participate in the advertising of alcoholic beverages in Ghana, which was banned by the FDA to protect their followers from being unduly influenced to consume alcoholic bever - ages, particularly children. The Supreme Court upheld this ban in the case of Mark Darlington Osae V Food and Drugs Authority & Anor , where a complaint was brought against the FDA regarding this ban. The GC also prohibits the use of celebrities in adver - tisements relating to gaming by operators. 5.5.2 Advertiser Liability for Influencer Content It is an advertiser’s responsibility to ensure that the contents of its advertisements are not misleading and that they do not contain false claims. Advertisements should also be pre-approved to ensure that advertis - ing content by influencers complies with the applica -
ble laws and regulations, so as to avoid liability for breach of these laws. 5.5.3 Consumer Reviews There are currently no special rules regulating the solicitation and use of consumer reviews in Ghana.
6. Privacy and Advertising 6.1 Email Marketing
In relation to email marketing, the Data Protection Act 2012 (Act 843) requires the consent of the subject to be obtained by the person who seeks to process such data. Section 40 requires the prior written consent of the data subject before his or her data can be used, obtained or provided for direct marketing. The Electronic Communications Regulations (L.I. 1991) provides that whoever wishes to send unso - licited communications for direct marketing by email, text message or a call must first obtain the consent of the subscriber. Where it is sent without prior con - sent, such communication must include the contact details of the sender, such as its name and where it can be reached free of charge. Where the unsolicited communication is by means of an email, the sender is required to ensure that its identity is not concealed and must provide a valid address to which the sub - scriber can send a request that the person desists from sending such messages. Regulation 6 (1) of L.I. 1991 provides for a fine of not more than 500 penalty units or an imprisonment term of not more than five years, or both, where a person steals, intercepts, alters, diverts or unlawfully disclos - es transmitted messages or data other than to the sender or recipient for which it was intended. Regulation 6 (5) also obliges operators to employ international best practices to promote the privacy, secrecy and security of communication and personal data accounts that relate to subscribers. A breach of this leaves the person liable to a fine of not more than 500 penalty units or to a fine as indicated in the licence issued to the operator if the latter is higher.
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