GHANA Law and Practice Contributed by: Olusola Ogundimu and Esohe Olajide, Integrated Legal Consultants
Penalties for a breach of Act 843 include a fine of not more than 250 penalty units or a prison term of two years, or both, for persons who fail to register as a data controller but engage in the processing of per - sonal data and purchase or obtain/disclose personal data knowingly. Furthermore, a fine of not more than 2,500 penalty units or a prison term of not more than five years, or both, will apply for persons found liable for the sale of personal data. Where Act 843 does not specify a penalty for an offence, offenders will be liable to a fine of not more than 500 penalty units or a term of imprisonment of not more than ten years, or both, upon conviction. Section 50 of the Electronic Transactions Act 2008 (Act 772) covers unsolicited communication, and prohibits the sending of unsolicited electronic com - munication to consumers without their prior consent. Where electronic commercial communication is sent to a consumer, the sender must provide an option to cancel the subscription and the source from which the persons obtained the consumer’s personal informa - tion. In addition, where a customer does not respond to an unsolicited communication, an agreement can - not be deemed to have been concluded, and such customer is entitled to recover costs associated with cancelling the unsolicited communication. A person who sends unsolicited electronic communi - cation without consent under Section 50 or continues to send communications after the cancellation of a subscription is liable to a fine of not more than 5,000 penalty units or a prison term of not more than ten years, or both, upon conviction. 6.2 Telemarketing In relation to telemarketing, 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) provide that whoever wishes to send unsolic - ited 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 consent, such communication must include the contact details of the sender, such as its name and where it can be reached free of charge. Where unsolicited communi - cation 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 subscriber can send a request that the person desists from sending such messages. The penalties and terms of imprisonment are the same as provided in 6.1 Email Marketing . 6.3 Text Messaging The rules that apply to marketing by text message are the same as those that apply to telemarketing (see 6.2 Telemarketing ). 6.4 Targeted/Interest-Based Advertising There are no specific requirements regarding the use of consumer data for purposes of targeting or retargeting consumers with advertising. However, it is important to note that consumers have a right to consent, and prior written consent must be obtained from a consumer before using their personal data for direct marketing in any form of media. Consumers can also object at any time to the processing of their personal data for direct marketing by giving written notice to the data controller, without stating a reason for such objection. In addition, where the data of the consumers was gathered with their consent for a specific purpose, it cannot be used for another purpose without their prior consent, and the provisions of the Data Protection Act 2012 in respect of the gathering and use of the data Section 37 (1) of the Data Protection Act 2012 (Act 843) prohibits the processing of personal data of a child who is under parental control under the law. Sec - tion 37 (2) allows the processing of such data where it is necessary (ie, for the vital interest of the data sub - ject or to exercise a right or obligation conferred by law on an employer) or with the consent of the data subject. of a subject in Ghana will apply. 6.5 Marketing to Children
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