LEGAL ISSUES IN E-COMMERCE WEBSITE DEVELOPING IN GHANA: OWNER BEWARE

Introduction

Website presence in the new global village will become a “sine qua non” in conducting business if Ghanaians want to take advantage of the digital platform.  The first point of call in wanting to do this is to approach a website designer with some ideas on how you want the site to look like and the features you expect to see. Design functionality and aesthetics most invariably are the issues the developer becomes pre-occupied with but there are legal issues to contend with especially more so when the website is accessible to anybody, anywhere and at anytime.

The Electronic Transactions Act 2008(Act 772) however gives directions as to how website developers can resolve these legal issues. I intend to raise the legal issues in website designing and attempt to give some indications as to what functionalities and best practice may be needed to satisfy the law  

Legal Issues in Trading Through A Website

There are a lot of legal considerations when designing a website and the following are some of the major issues confronting a business in Ghana that wants to be part of the digital platform.

Jurisdiction/ Applicable Law

Using a website has no respect for local or national boundaries and the applicable law is not that straight forward. The target market has gone beyond Ghana and may be good for business development but was the intention to reach buyers in other countries or just the rest of Ghana. What jurisdiction is responsible for the transactions and agreements through the website.

Obviously, the questions of what law governs an online contract, and where disputes relating to the contract may be litigated, are two distinct questions which must be made clear on the website.

Physical Location/Establishment

I guess anybody transacting business -offline- in Ghana must have a physical location or address where the business can be reached by consumers such as plot “A”, magazine industrial area, Kumasi or P.O. Box 11, Kumasi. Does a website address such as Magazine.com with its e-mail address info@Magazine.com provide that same comfort? How can the consumer know the physical location? Which part of the world is it located? The issue of establishment is not that easy to define in the online world. The website owner (seller) is in Magazine-Kumasi but the website is being hosted on a server in Serbia and updated by a hosting company or developer in Greece with the fulfillment centre in China.

Consumer Rights

I did not order that. How can this be avoided? When I enter a shop in the offline world and I pick my goods to the counter, I can decide to have a change of mind and return some of the goods before making payment for the rest. The consumer is therefore in control of the right to cancel.

In an online world, what if what the consumer saw on the website is not what the product really looks like, physically. The consumer must be protected from fraudulent representation and other unethical business conduct.  

Privacy & Data Protection

Making online orders may require the buyer giving certain personal details of herself (name, address, telephone number etc). Since these are stored electronically they can be subjected to further processing and data mining technology leading to customer profiling. This could facilitate direct marketing and ‘unsolicited offers for goods and services” by other sellers with whom the buyer has had no previous contact whatsoever. This is a misuse and against the data subject rights.

Target Market

The website is giving global presence but is that the intention. If the spare parts dealer at Magazine-Kumasi for example states on the website that delivery is free. What is the legal implication if an order is made from someone in China and the spare parts dealer refuses to deliver? Was the intention for only Kumasi or Ghana?. This might seem trivial but needs to be made clear. If the target market is only for Ghana it must be made clear.

Copyright

The website could allow consumers to subscribe to either newsletters or downloadable articles especially for a service website. What are the terms of use with respect to these documents? Is commercial duplication allowed? Care must also be taken when making links from the website to other copyright material on other websites. Express consent may be desirable in some cases or conditions for linkage from those websites must be adhered to. You may need to check the “terms of use or privacy policy” document of that website if available.

How To Be Legally & Best Practice Compliant

There are certain design functionalities that the web designer must put in place to resolve the legal issues or to a large extent minimise the owners potential liability for putting up a business  website. These would of course vary depending on the purpose or type of website by way of sophistication but generally my advice is as follows:

• Language

If the business is in Ghana and intends to target only consumers in Ghana then I guess the official language is English. Do not attempt to put in place a language converter that can translate the website content to other languages such as German, Spanish or French. This may give the implication that the target is also for German, Spanish and French speaking countries.

• Opt-in/Opt-out clause

This may be necessary if the website intends to collect personal information to be used for other purposes such as direct marketing or product/service information or sharing with other companies. The “opt-in” clause to me is more ethical and safer since this gives the consumer the default of not being part but the option to expressly agree to be part of any scheme you intend to use the information for. You might not get away easily with an “opt-out” clause if it is not vividly and conspicuously brought to the notice of the consumer.  The website should also at all times have the facility to allow a consumer to opt out of any scheme she has agreed to be part of. There are several ways this can be done.

• Privacy Policy

This is one of two documents (together with “Terms of Condition/Use”) that is critical if the website is that sophisticated and goes beyond just advertisement and increasing of mindshare. Once there is a form of interactive communication by way collection of personal information, this to me is a must. It would contain amongst others issues relating to what information is collected, what the information is used for, security of the information collected, use of cookies etc.

Yes you need to see a lawyer. This is serious legal issues which may lead to an operational risk in your business. Do not take a lawyer who has not heard of “cookies” etc. She is likely to find an omnibus template for you and you may still be at risk. I mean get an IT compatible lawyer who understands the IT issues or someone who has the legal brain with such issues to assist. This policy must be available on each webpage visited.

• Terms/Condition of Use

This is another critical document that is intended to deal with issues relating to acceptable use, applicable law & jurisdiction, license to articles or use of newsletter content, user generated content, dispute and compliant mechanism etc. Please do not try to be a “draftsman in law” get a lawyer to build the document which must be available for viewing on each webpage visited.

• Applicable law

This in my opinion will have to be stated somehow even if a full blown “Terms of Use” document is not required.

• Target market

It may be desirable to make a statement limiting the target market. A simple statement to the effect that “This website is targeted at ONLY consumers resident in Ghana” is sufficient to limit your liability.

• Business Details

It is desirable to have on the website details relating to the physical location of the business, contact information (email and P. O box), any affiliation to professional bodies or regulatory body with license if any, trade registration if any or registrar general’s incorporation number, subscription to codes of conduct if any, VAT number or Tax Identification Number (TIN) if any,

Conclusion

Having a web presence is not really all about the aesthetics with respect to color, font styles and size, pictures etc. It opens the business to a whole lot of legal risk which becomes complex as the website functionality moves into the interactive and transactions phases. This should not be taken lightly especially for corporate bodies. Yes your website looks nice, cool and portrays a good brand but you may operationally and legally be at risk. My advice is for you to undertake a legal compliance test on your website. Limit your liability.