GHANA’S ELECTRONIC TRANSACTIONS ACT 2008 (ACT772) AND THE INTERNET SERVICE PROVIDER: HOW FAIR IS THE TAKEDOWN NOTICE?

Internet service providers (ISPs) have become an integral part of the digital economy providing and facilitating Internet connectivity and other services between the business, government and citizens. Services provided include provision of e-mail accounts that allow correspondence between parties, hosting of news servers that allow the creation of Usenet newsgroups, web servers that allow the hosting of websites either for sharing information or facilitating transactions.  The role of ISPs may range from being analogous to newspaper publisher or re-publisher, bookseller or distributor, communication service provider, library, post office and these roles may bring about certain vicarious liabilities when legal issues arise.

The challenges ISPs face in their role is really with respect to the extent of their liabilities with regards to e-disputes and need to be put into proper perspective. For example:

§  As website hosts, are they vicariously responsible for wrong information or technical malfunctioning on a government or business website that results in a loss or damage to a party?

§  As Internet access providers, are they vicariously responsible for computer fraud or crime committed against a government agency or business through the use of their system? If an ISPs system is used to hack into a government or business system, what happens? To what extent are they supposed to keep subscribers details private?

§   What are their responsibilities and protection with respect to the services they are providing in facilitating B2C or G2C transactions?

The role and liabilities of Internet Service Providers (ISP) are covered under sections 90 to 95 of Act 772 which covers issues such as “mere conduit”, “caching”, “hosting” and “take-down notification”. These generally conform to international laws dealing with the roles and liabilities of ISPs for the services they provide. The area that in my opinion needs clarification is an area dealing with ‘take-down notification’.

The Ghanaian law however makes the ISP liable for a ‘wrongful take down in response to a notification’ and this is in my opinion is unfair on the ISP as a key facilitator of e-commerce.

Under s91(e) it rightfully absolves the ISP from liability as long as it ‘removes or disables access to the electronic record it had stored upon receiving a take-down notice under the Act’ ,  however under s94(4) it is stated that ‘the intermediary or service provider is liable for wrongful take down in response to a notification’.  

This seems to put undue responsibility on the ISP. How can the ISP know the take down is wrongful?  If the ISP receives a take-down notice from a citizen with respect to a record on a government website for example and this is complied with but later tends out that the record was correct, the Act as it stands seem to make the ISP liable. Though a genuine concern that needs to be addressed to make sure there is no arbitrary removal of electronic records or websites, this is not fair on the ISP.

SUGGESTED SOLUTION

What in my opinion may be done to resolve this as some legislatures in some countries have done is to:

·         Oblige the ISP to remove the electronic record or website on receipt of the take-down notice;

·         Oblige the ISP to notify the publisher or owner of the website about the notice;

·         Oblige the party giving the take-down notice to obtain a court order to ratify the removal of the record  or website within a specified period may be 7 days;

·         Oblige the ISP to re-instate the electronic record or website if no court order is received within the specified period.;

·         Punish the person who made the take-down notice as wrongful if no court order is justifiably obtained;

·         Allow the publisher of the record or owner of the website to take legal action against the person who made the take-down notice;

·         Make the ISP only liable for wrongful take-down if the record or website is not re-instated immediately, where no court order has been produced on expiry of the period given for the receipt of a ratification court order.

The above will make sure the person who makes the notice of takedown is absolutely sure of the facts since there would be legal implications if the notice is wrong, the person who published the information to have re-dress against any person making a wrongful notice and the ISP only being liable if it fails to satisfy certain conditions.

I wonder why the ISPs have not responded to this but again I guess it is because we as Ghanaians are not really sophisticated as e-citizens to start making certain demands as data subjects. May be a test case may prompt the ISPs. Ghanaian lawyers really have a lot of intellectual discourse to make not forgetting money for those who become e-lawyers early with all these ambiguity in our Ghanaian e-legislation and I really cannot wait to observe the development of the e-legal landscape in Ghana.