Physical Address
304 North Cardinal St.
Dorchester Center, MA 02124
Lidwina Effah (UGSOL ’26) – 2nd place(Legally Speakin Relaunch Writing Contest)
I. Introduction
The internet has revolutionized journalism through facilitated online reporting. While
this method of dissemination of information is more efficient than print media,
regulations are essential to protect personal data from misuse by digital journalists. A
data subject is an identifiable natural person who can be identified, directly or
indirectly, by reference to an identifier such as a name, an identification number,
location data, an online identifier or to one or more factors specific to the physical,
physiological, genetic, mental, economic, cultural or social identity of that natural
person.[i] A digital journalist on the other hand, is said to be a contemporary journalist
whose editorial content is distributed via the internet as opposed to publishing via
print or broadcast.[ii] This article discusses the extent to which a balance between the
rights to be forgotten and to freedom of speech and expression as exercised by data
subjects and digital journalists respectively, exists under Ghana’s data protection laws.
II. The Right to be Forgotten and its Application in Ghana
Data privacy is fundamental to data security in that, it discourages unfiltered access to
personal information. Privacy may be defined as the right of a person and his property
to be free from unwarranted public scrutiny or exposure. [iii] The 1992 Constitution of
Ghana guarantees the right to privacy as a fundamental human right. [iv] According to its provisions, no person shall be subjected to interference with the privacy of his home, property, correspondence or communication.[v] The wording of the provision implies that this right includes the right to data privacy. The Data Protection Act, 2012 (Act 843) affirms this by providing that a data processor[vi] must consider the privacy of a data subject and process data without infringing on the latter’s privacy rights.[vii]
The right to privacy, like every other right, is not absolute. Thus, the constitutional provision goes on to state that interference in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country; for the protection of health or morals; for the prevention of disorder or crime or for the protection of the rights or freedoms of others is permitted. [viii] In guaranteeing privacy rights, data subjects have been granted the right to obtain from the data controller [ix] the erasure of personal data concerning him or her without undue delay. A data controller is therefore obliged to erase personal data without undue delay upon the request of a data subject on certain grounds. [x]
This is what is referred to as “The Right to be Forgotten”. This right was first recognized by
The Court of Justice of The European Court (CJEU) in the case of Google v. AEPD &
Mario Costeja (The Google Spain Case) [xi], and later applied in Google v. CNIL (The
Google France Case). [xii] To formally acknowledge its application in member states,
the General Data Protections Regulation (GDPR) [xiii] was adopted by the European
Union (EU). Based on the GDPR and landmark cases, the Right to be Forgotten simply means the
rights of a data subject to erasure and to be delisted. Whilst the former allows
individuals to request that an organization remove any personal data processed about
them, the latter enables the removal of one or more results provided by a search
engine about them. Ghana’s data protection laws make provision for the right to
erasure but not the right to be de-listed. According to Act 843, the Data Protection
Commission, which has been charged with protecting the privacy of the individual
and personal data by regulating the processing of personal informationxiv, may order
the data controller to erase personal data if satisfied by a complaint of a data subject
that the [xv] personal data of that data subject is inaccurate.[xvi] On the question of who qualifies to be a data controller, the definition provided in Act843 is one of person other than an employee of the data controller who processes the data on behalf of the data controller. [xvii] Processing here means an operation or activity or set of operations by automatic or other means that concerns data or
personal data and the collection, organization, adaptation or alteration of the
information or data, retrieval, consultation or use of the information or data,
disclosure of the information or data by transmission, dissemination or other means
available, or alignment, combination, blocking, erasure or destruction of the
information or data [xviii] A data processor refers to whoever processes data on behalf of
the data controller per Act 843. [xix] It follows that, a digital journalist is a data processor
and the institution or organization on whose behalf they publicize personal
information is a data controller.
III. The Right to Freedom of Speech and Expression and its Application in
Ghana.
The Right to Freedom of Speech and Expression is guaranteed for all persons in
Ghanaxx. The right is further reinforced by international treaties and conventions that
Ghana has ratified, such as the International Covenant on Civil and Political Rights
(ICCPR) xxi and The African Charter on Human Rights xxii .These international
instruments echo and reinforce Ghana’s commitment to uphold free speech. This
freedom, according to the Constitution, includes the freedom of the press and other
mediaxxiii. The right to freedom of speech and expression forms a vital part of Ghana’s
democracy and its regulatory framework continues to be shaped by historical, cultural,
and social considerations. The right to freedom of speech and expression, importance
to Ghana’s democratic society was highlighted in the case of Ghana Media
Broadcaster’s Association v. National Media Commission xxiv and several others,
which contributed to the development of the jurisprudence surrounding it.
In addition to freedom of the press, the 1992 Constitution guarantees the
independence of the mediaxxv. Accordingly, editors and publishers of newspapers and
other institutions of the mass media cannot be penalized or harassed for their editorial
opinions and views, or the content of their publications xxvi . However, the
independence of the media does not in any way limit the enjoyment of any of the
fundamental human rights and freedoms guaranteed under Chapter 5 of the
Constitution xxvii and there may be censorship, subject to other constitutional
provisions and any other law that is not inconsistent with the constitutionxxviii
. The
need to uphold the right to freedom of speech and expression in journalism as well as
the independence of the media without promoting media impunity was well explained
in the case of Ghana Media Broadcaster’s Association v. National Media
Commissionxxix. According to Benin JSC,
“The provisions of Articles 162 and 163 of the Constitution are subject to laws
that are reasonably required in the interest of national security, public order,
public morality and for the purpose of protecting the reputations, rights and
freedoms of other persons. The Constitution, therefore, envisages that any
authority which is entrusted with the responsibility to pass laws to manage the
media landscape would pass such laws as are devoid of censorship, in the first
place. And where it is necessary to introduce a form of censorship, it must be
justified in terms of the clear provisions of Article 164 of the Constitution or
any other material provision in the Constitution or law that is not inconsistent
with the Constitution. Where any restriction or limitation fails the test of
justification in terms of the Constitution, it would not have passed the no
censorship requirement in Article 162(2)”.
As a result of Ghana’s immediate post-independence history, one characterized by a
culture of silence which inhibited the citizenry from actively participating in
governance, it was important that the framers achieve the dual objective of free
expression and sanity in media practicexxx
. The restrictions imposed on the media
include certain types of content deemed detrimental to societal cohesion and national
security such as hate comments, defamatory statements and pornographyxxxi
.
IV. Balancing the Right to be Forgotten and Freedom of Speech in Ghana
The scope of exercising the right to be forgotten was determined in the
aforementioned Google cases; in the Google Spain Case, the court sought to balance
the interest of data subjects with the interest of the public to access information.
According to the court, balancing both interests may depend on the nature of the
personal information involved. That is, how sensitive the information is to the data
subject’s private life, should the public have access to such information. Further, in
having regard to all the circumstances of the case such as the role played by the data
subject in public matters, the information in question must be inadequate, irrelevant or
excessive in order for the data subject to succeed in an action against a data controller
for the removal of the information or links concerned and it matters not that the
information was lawfully published and true at the time of publication. Thus, the
request of Mr. Mario Costeja Gonzalez to have Google de-reference his name from
links to web pages containing information relating to his indebtedness in the past as
the information continued to harm his reputation was granted. Before reaching this
conclusion, the court established that a search engine operator is a data controller and
the activity of finding published information on the internet and presenting it in a
particular way for the internet user, constitutes data processing.
Following this decision, in the Google France Case a penalty was imposed by the
French Data Protection Authority (CNIL) on Google for failing to remove the links to
web pages from the list of results displayed in all its search engine’s name extensions
when granting a request to do so, confining itself to removing the links in question
from only the results displayed corresponding to the versions of its search engine in
the particular member state. The CJEU conceded that the ‘right to be forgotten’ must
be proportionally balanced with other fundamental human rights in order that the
judicial authority of member states are able to balance the right to information with
the right to privacy. Therefore, on the central issue of whether the right to be forgotten
should require that a search engine should deploy, irrespective of the place from
where the search is conducted, the court answered in the negative. The reason being
that the right to de-referencing was not a global right and even in member states of the
EU it was not an absolute right. The court also mentioned that a search engine
operator can be ordered to use measures that effectively prevent or, at the very least,
seriously discourage an internet user from gaining future access to de-referenced links,
in circumstances deemed necessary to do so. For the convenience of this paper, the
part of the decision on the balance of internet users’ interest to keep their personal
data private with the interest of the public to access information, is our focus.
From the holding of Ghana Media Broadcaster’s Association v. National Media
Commission, one of the objectives of the framers in guaranteeing the right to freedom
of speech and expression was to ensure public interest in the form of public
participation. It was particularly stated that free speech as a voter education tool is the
foundation of democratic self-government which propels and promotes the
development of culture, science, art, technology and commerce thereby ensuring
individual self-development, association and enjoyment of all other rights including
the right to access informationxxxii. It would therefore seem that the guarantee of the
right to access information is a guarantee of free speech and vice versa.
On balancing the right to privacy and free speech in Ghana, Benin JSC once again
emphasized in Justice Paul Uuter Dery v. Tiger Eyexxxiii, that there is the need to
balance the right to privacy and confidentiality of a judge with the right of the public
to investigate allegations made against judges such that the restriction on publication
of impeachment processes is limited to the period of the impeachment, and that any
permanent injunction against publication would stifle the right to freedom of
expression.
Under Act 843, a person who processes data shall take into account the privacy of the
individual by applying the principles of accountability, lawfulness of processing,
specification of purpose, compatibility of further processing with purpose of
collection, quality of information, openness, data security safeguards, and data subject
participationxxxiv. This requirement discourages digital journalists from abusing their
right to freedom of speech and expression when making reports using personal data
on online platforms. Moreover, to fully exercise the right to erasure, the data subject
must satisfy the data commissioner by a complaint in writing that the personal data
used is inaccuratexxxv. The balance under Ghana’s data protection law seems to be
derived from the principles of data protection that must be complied with by digital
journalist when processing personal data and the discretion of the data commissioner
to erase inaccurate personal information on the request of data subjects.
V. Conclusion and Recommendations
From a legal perspective, the requirement for exercising the right to erasure under Act
843 appears excessively broad. This is because, while digital journalists must adhere
to standard principles in processing personal information, data subjects exercise the
right to erasure at the discretion of the data commissioner who determines whether the
personal data is inaccurate. This potentially creates an imbalance of the conflicting
interests under consideration where the data commissioner is incompetent.
Consequently, in an instance where inaccurate personal information is declared
accurate, the data subject would wrongfully be prevented from exercising the right to
erasure to have the relevant online report taken down. Again, where the personal data
is accurate but declared inaccurate, the digital journalist would wrongfully be
prevented from exercising the right to freedom of speech and expression when
ordered to take down the relevant online report.
Additionally, the principles of data processing under Act 843 appear unsatisfactory
when compared with those contained in the GDPR. Under the GDPR, personal data
shall be processed fairly and in a transparent manner; for archiving purposes in the
public interest processing shall be in accordance, adequate, relevant and limited to
what is necessary in relation to the purposes for which they are processed and where
necessary, kept up to date; processed in a manner that ensures appropriate security of
the personal data, including protection against unauthorized or unlawful processing
and against accidental loss, destruction or damage, using appropriate technical or
organizational measures and every reasonable step must be taken to ensure that
personal data that are inaccurate, having regard to the purposes for which they are
processed, are erased or rectified without delay. xxxvi The same appertains to the
conditions for exercising the right to erasure which under the GDPR are; where the
personal data is no longer necessary in relation to the purposes for which they were
collected or otherwise processed; the data subject withdraws consent on which the
processing is based or where there is no other legal ground for the processing; there
are no overriding legitimate grounds for the processing or the personal data have been
unlawfully processedxxxvii . Act 843 lacks these specific principles and conditions
contained in the GDPR, which effectively balance the right to be forgotten and
freedom of speech and expression.
In view of this, an amendment of Ghana’s Data Protection Act 2012 (Act 843) to
include these comprehensive principles and conditions must be considered.
Alternatively, in the absence of express provisions on the right to be forgotten under
Act 843, a Digital Privacy Act akin to the provisions of the GDPR may be passed by
parliament to incorporate the GDPR into Ghanaian lawxxxviii
.
END NOTES
[i] General Data Protection Regulation [2016] O J L 119/1 art 4. ; [ii] Christine Opoku Onyinah ‘The Right to Be Forgotten and Data Protection in Ghana: Implications for the Practice of Digital Journalism’ [2024] Volume 4 UPSA Africa International & Comparative Law Journal 69 ; [iii] Bryan. Garner, (ed) Black Law Dictionary (9th Edition, West Publishing Company, Dallas) ; [iv] Constitution of Ghana 1992, art 18. ; [v] Constitution of Ghana, 1992, art 18(2). ; [vi] A person which processes personal data on behalf of the controller whether a natural or legal person, public authority, agency or other body. ; [vii] Section 18 of Act 843 ; [viii] ibid ; [ix] A natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of processing personal data.; [x] General Data Protection Regulation [2016] O J L 119/1 art 17. ; [xi] Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos (AEPD), Mario Costeja Gonzalez; CJEU Case No. C-131/12 judgment delivered on 13th May 2014 [EU:C: 2014:317] ; [xii] Google LLC v. Commission nationale de l’informatique et des libertés (CNIL) ; CJEU Case No. C507/17 judgment delivered on 24th September 2019 [ECLI:EU:C:2019:772] ; [xiii] General Data Protection Regulation [2016] O J L 119/1 ; [xiv] Section 2(a) of Act 843 xv Section 42 of Act 843; [xvi] Section 44 of Act 843 ; [xvii] Section 96 of Act 843 ; [xviii] ibid ; [xix] ibid ; [xx] Constitution of Ghana 1992, art 21(1)(a). ; [xxi] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976); [xxii] African (Banjul) Charter on Human and People’s Rights (adopted 27 June 1981, entered into force 21 October 1986) OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982) ; [xxiii] Constitution of Ghana 1992, art 21(1)(a). ; [xxiv] (2016) JELR 68185 (SC) ; [xxv] Constitution of Ghana 1992, art 162(1). ; [xxvi] Constitution of Ghana 1992, art 162 (4). ; [xxvii] Constitution of Ghana 1992, art 165. ; [xxviii] Constitution of Ghana 1992, art 162 (2). ; [xxix] (2016) JELR 68185 (SC); [xxx] ibid ; [xxxi] Public Order Act 1994 ; [xxxii] Per Benin JSC in Ghana Media Broadcaster’s Association v. National Media Commission(2016) JELR 68185 (SC) ; [xxxiii] Supreme Court Judgment in Writ No. J1/29/2015 delivered on 4th February 2016 ; [xxxiv] Section 17 of Act 843 xxxv Section 42 of Act 843; [xxxvi] General Data Protection Regulation [2016] O J L 119/1 art 5(1); [xxxvii] General Data Protection Regulation [2016] O J L 119/1 art17(1) ; [xxxviii] Joseph-Albert Kuuire, ‘Does Ghana Need to Consider Adoption of a Digital Privacy Bill?’ (Tech Labari 10 April 2024) accessed 26 March 2025.