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The Right to Privacy and Data Protection in Ghana

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African Data Privacy Laws

Part of the book series: Law, Governance and Technology Series ((ISDP,volume 33))

Abstract

The right to privacy forms part of fundamental human rights and freedoms under most national constitutions or legislation. The law of privacy protects individuals from intrusions and invasions upon their person, correspondences and communications, home and property. Privacy law ensures that the autonomy, name and dignity of human beings are protected. This chapter explores the nature of privacy and data protection law in Africa with particular reference to Ghana. In broad terms, it reviews and interprets the constitutional provision on privacy and analyses the social and cultural attitudes towards privacy in Ghana. It argues that privacy is an individual-socio-cultural construction. Privacy being a relational, social concept can only be understood within the social and cultural context. The rest of the chapter is devoted to reviewing and interpreting the legal principles of personal data protection in Ghana. The Data Protection Act which was enacted in 2012 provides a statutory basis for the realisation of the constitutional right to privacy in Ghana. The principles of personal data protection under this legislation are outlined and interpreted. The Data Protection Act is a very important piece of legislation towards the substantive protection of the constitutional right of privacy of correspondence and communication. The actual realisation of its objects depends on its implementation, which requires the collective and collaborative efforts of all: the Data Protection Commission and other state institutions, the private sector that uses personal data, data subjects and the general public.

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Notes

  1. 1.

    Warren and Brandeis (1890–1891) p. 196, they stated that:

    The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

  2. 2.

    Milberg et al. 1995, pp. 65–66. See Also Makulilo 2015a, b, p. 79; Long and Quek 2002, p. 326; stating that “States are discovering that their economic interest in maintaining minimal barriers to trade and information movement could threaten national norms and domestic institutions protecting personal privacy.

  3. 3.

    Milberg et al, (n: 2); p. 66.

  4. 4.

    Kang 1998.

  5. 5.

    Boamah 2014 .

  6. 6.

    Acting Chief Executive Officer, avove note 5 at 2.

  7. 7.

    Culnan and Armstrong 1999, p. 106. See also Smith et al. 1996.

  8. 8.

    Bekoe 2013, p. 189

  9. 9.

    Ibid.

  10. 10.

    Ibid.

  11. 11.

    Makulilo, (n. 2), p. 79.

  12. 12.

    Ibid p. 165

  13. 13.

    Dagbanja 2014, pp. 40-2013;41. Underscoring social and cultural differences in the expression of the right to privacy McQuoid-Mason(1978) that:

    even modern societies have differing concepts of privacy. For instance, while Germans demand closed office doors, fenced yards, separate rooms and strict person to person distancing, the Americans are content with open office doors, unfenced properties and informal rules of personal and social distance. The English on the other hand are accustomed to shared offices and bedrooms, and use ‘reserve’ rather than doors and walls to preserve their privacy. The French and the Arabs have been described as ‘sensually involved’ with individual members of their society in a manner which would be offensive to Germans, Englishmen and Americans. It has been suggested that because the Japanese and the Arabs enjoy crowding together they have no word for ‘privacy’ […] but one cannot say that the concept of privacy does not exist […] only that it is very different from the Western conception.

    But see Makulilo (n. 2); p. 78 arguing that “[p]privacy is a value that has its roots in the Western world.”

  14. 14.

    University of Cape Coast v Anthony [1977] 2 GLR 21 at 42–43.

  15. 15.

    Nukunya 2003, p. 19.

  16. 16.

    Davies and Dagbanja 2009, p. 310.

  17. 17.

    Ibid at 309.

  18. 18.

    Assimeng 1999, p. 75.

  19. 19.

    Dagbanja 2015, p. 422.

  20. 20.

    Davies and Dagbanja, note 15 at 309.

  21. 21.

    Agyei-Bekoe, above note 8 at 159

  22. 22.

    Ibid.

  23. 23.

    Bellman et al. 2004, p. 315. See also Hofstede 1980, 1991; and Milberg et al. 2000.

  24. 24.

    Republic v Tommy Thompson Books Ltd [1997–1998] 1 GLR 611 at 644

  25. 25.

    Constitution art. 18(1) and (2). As far back as 1970 before the current Constitution of Ghana, 1992 came into force, some judges were calling for the need for recognition and protection of the right to privacy in Ghana. Other judges were more hesitant and called for the need for studies that would allow for the development of principles on the right to privacy that would be in consonance with the Ghanaian culture and ways of live. A case in point is University of Cape Coast v. Anthony [1977] 2 GLR 21. The photograph of the plaintiff, a married woman, was taken at a function of a benevolent society at the request of the society by arrangement with The Catholic Standard, a religious newspaper and with the consent of the plaintiff. The photograph was published in the newspaper. Subsequently, the University of Cape Coast, published copies of the plaintiff’s photograph in the form of postcards. The postcards were then exhibited and sold at their bookshop. The plaintiff alleged that she had been libelled by the publication of the postcards and sued for damages. No case of invasion of privacy was pleaded but on appeal the plaintiff sought to make a claim to invasion of her privacy. It was held, allowing the appeal that the publication of a person’s photograph even for sale without his consent was not libel per se and was not libellous in the circumstances of this case. On the right to privacy, it was held, obiter, that the court was precluded by a long line of respectable authorities from granting any relief to the plaintiff for the alleged invasion of her privacy. The court noted that plaintiff gave her full blessing for the picture to be published in a newspaper with world-wide circulation; the defendant did not extract her picture from her private family album. Therefore, she could not make a claim to invasion of her right to privacy.

  26. 26.

    Warren and Brandeis, above note 1

  27. 27.

    University of Cape Coast v Anthony, (n.26) p. 421.

  28. 28.

    Epstein 2000, p.15.

  29. 29.

    Constitution art 21(1).

  30. 30.

    Ibid art. 14.

  31. 31.

    Ibid art. 15.

  32. 32.

    Ibid art 33(1).

  33. 33.

    Ibid art. 33(2).

  34. 34.

    Ibid art. 33(3).

  35. 35.

    Ibid art. 11(1)(e).

  36. 36.

    Ibid art. 11(2).

  37. 37.

    Williams 1982, p. 25.

  38. 38.

    Relevant English case law include Wainwright v Home Office (Respondents) [2003] UKHL 53; [2003] 3 WLR 1137; His Royal Highness the Prince of Wales v Associated Newspapers Ltd [2006] EWHC 11 (Ch); Douglas v Hello! Ltd [2005] EWCA Civ 595; Kaye v Robertson [1991] FSR 62; Mosley v News Group Newspapers [2008] EWHC 1777 (QB); Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22

  39. 39.

    Constitution art. 33(5)

  40. 40.

    Pavlou 2011, p. 978. See also Clarke 1999; and Solove 2006.

  41. 41.

    Data Protection Act s 2.

  42. 42.

    Ibid s 45.

  43. 43.

    Data Protection Commission.

  44. 44.

    Data Protection Act s 18

  45. 45.

    Ibid s 19

  46. 46.

    Ibid s 23.

  47. 47.

    Ibid s 88.

  48. 48.

    Ibid s 95.

  49. 49.

    For essays on personal data protection in Africa see Makulilo 2012, 2015a, b; Makulilo, (n. 2); Makulilo 2013a, b.

  50. 50.

    EX.CL/846(XXV), online: <https://ccdcoe.org/sites/default/files/documents/AU-270614-CSConvention.pdf>

  51. 51.

    Supplementary Act A1SA.1f01f10 on Personal Data Protection within ECOWAS, (n. 2), pp.82–83 for a fuller analysis of this legal framework.

  52. 52.

    Address by the Ag. Executive Director of the Commission at the Launch of the Data Protection Act, 18 November 2012.

  53. 53.

    Ibid at 1.

  54. 54.

    Acting Chief Executive Office (n. 5) p. 6.

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Dagbanja, D.N. (2016). The Right to Privacy and Data Protection in Ghana. In: Makulilo, A. (eds) African Data Privacy Laws. Law, Governance and Technology Series(), vol 33. Springer, Cham. https://doi.org/10.1007/978-3-319-47317-8_10

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