ABSTRACT
The increase in the use of electronic means in communicating opens up the avenue for courts to conduct cases more conveniently and remotely. The Electronics Transactions Act (2008) therefore acknowledges this means of communication which has become a part and parcel of human interaction and seeks to assist the courts in integrating such a medium in the disposal of cases. In Ghana, there is some reluctance in the legal system to fully embrace electronic communications as a form of evidence due to the possibility of encouraging innuendo and misinformation in the conduct of legal proceedings. Ultimately, the test in admitting electronic evidence relies on whether such an admission is likely to bring the administration of justice into disrepute.
INTRODUCTION
The Electronic Transactions Act (2008) is generally to provide for the regulation of electronic communications and related transactions. Since the passage of this Act, a number of both private and public institutions in Ghana have taken steps to ensure that their functions are carried out electronically.
Moreover, the pervasiveness of electronic communications and information technology, calls for a reformation in the Ghanaian legal system to accommodate electronic communications as a form of evidence during legal proceedings. Indeed, the courts have begun to consider the admissibility of such electronic communications, which may possibly become the future of the law of evidence.
The Electronic Transactions Act is explored in this paper because the provisions therein have become increasingly relevant to lawyers in this era of a pandemic (COVID-19), where the conservative nature of legal practice is changing its dynamic to include technology. This inclusion of technology is with the aim of facilitating the smooth disposal of cases.
This paper discusses the salient sections of the Act that are relevant to the practice of lawyers, some of which include the overall purpose of the Act, its scope and the provisions on digital signatures.
- SECTION 1 - OBJECT OF THE ACT
The Act is generally to provide for the regulation of electronic communications and related transactions and to provide for connected purposes. There are a number of objectives listed in the Act including the removal and prevention of barriers to electronic communications and transactions. The internet service providers for instance, have adopted combinations of technologies such as wireless and Asymmetric Digital Subscriber Line (ADSL), to make internet services accessible to all.
The National Communication Authority has also formed an Interconnection Technical Committee with the objective of resolving all technical problems associated with interconnection at the committee level before it becomes explosive. To this extent, the removal and prevention of barriers to electronic communications, has been achieved.
The Act also provides for the promotion of e-government services and electronic communications with public and private bodies, institutions and citizens. Some of the ministries such as the Ministry of Finance, have established an ICT division, although merely in the form of the provision of support services including maintenance of local area networks and minor computer repairs. In addition to this, there are some e-government services to citizens where the latter can access and download government information online.
The Act also seeks to promote the development of electronic transaction services that are responsive to the needs of consumers. Innovatively, some Frequency Modulation (FM stations) have adapted internet broadcasting with the aim of targeting Ghanaians in the diaspora to enable them gain access to live broadcasting on the developments in the country.
Another objective of the Act is to ensure that in relation to the provision of electronic services, vulnerable groups and persons with disabilities are taken into account. With regards to this objective, educational institutions for instance, have not been successful due to the issue of sustainability. The E-Care centres which are to provide opportunities for people to acquire basic skills and knowledge in ICT, are faced with operational challenges.
The author however, focuses on the objective of the Act that seeks to promote legal certainty and confidence in electronic communications. A deeper discussion surrounding this subject matter, will be explored in the section of the article that touches on the admissibility and evidential weight of electronic records.
- SECTION 3 - SCOPE OF THE ACT
It is clear that the Act provides a legal framework to facilitate the accommodation of electronic transactions but does not operate to replace the existing methods that have been applied in the legal practice. This simply means that the conservative methods that are common to the populace have not been wiped away and are still very relevant to society. In essence, this Act is only complementary to already existing practices.
Furthermore, the Act does not impose on any person to generate, communicate, retain, or record information by or in electronic form. The effect of this is that any organisation that seeks to create an electronic system to carry out its functions, must take this section into consideration.
The E-Justice system for example, allows lawyers to opt for cases to be heard virtually by giving a seventy-two (72) hour notice period. This option does not however, prevent lawyers from going before a judge to make their case orally.
The Act also covers persons who are in the position to accept electronic records. The Act does not seek to prevent such category of persons from establishing certain criteria or guidelines that must be conformed to, in order for records to be accepted into that person’s online portal. The author once again, makes reference to the E-Justice system for illustration.
In order to access the E-Justice portal, one must have a Business Partner (BP) number to utilize it because it is the unique number for identifying individuals. In the same vein, prospective students of the Ghana School of Law (GSL), must convert all their supporting documents into a PDF format before they can be accepted on to the GSL online portal.
The Act also provides that any law can expressly authorise, regulate or even prohibit the use of electronic records. An example of this is in Section 4 of this very Act, which expressly excludes certain documents from being generated or communicated electronically. The next section of this paper sheds more light on this.
3.0 SECTION 4 – EXCLUSION
This section lists the documents that are excluded from being generated and communicated electronically. The first type of documents that are excluded are negotiable instruments. A negotiable instrument is a signed document that guarantees the payment of a specific amount of money to a specific person or the bearer of the signed document at a future date or on demand. An example of a negotiable instrument is a cheque.
The second type of document that this Act does not apply to, is a power of attorney. This is a legal document that allows a person to appoint an agent to act on their behalf in relation to their private affairs, business, or some other legal or financial matter.
A trust is also excluded from the type of documents that can be generated and communicated electronically. A trust is a fiduciary relationship that allows a third party to hold assets on behalf of a beneficiary or beneficiaries.
The fourth type of document excluded from this Act is a Will. A will as defined in the Wills Act, 1971 (Act 360) includes a codicil or any other testamentary instrument. In simple terms, a will is a legal document that expresses one’s wishes as to how their property (estate) is to be distributed after their death and the care of any children or family members. A codicil on the other hand, is an addition or supplement that explains or modifies a will.
A contract for sale or conveyance also forms part of the exclusion list under section 4 of the Act. A contract for sale is an agreement between a buyer and seller for the purchase of goods or property in exchange for consideration. A conveyance is the transfer of property from one person to another.
Bills of ladings are also documents that cannot be regulated under this Act. A bill of lading is a receipt of shipped goods normally present in haulage agreements and serves as a contract between the carrier, shipper and receiver.
Documents required for the registration of a company, sole proprietorship or partnerships as well as affidavits and statutory declarations are excluded from the Act. Finally, any class of documents or transactions that may be notified by Gazette are not covered by the Act.
- SECTION 10 – DIGITAL SIGNATURE
This section of the Act provides circumstances where a digital signature is deemed to be authentic. One of such circumstances is where a signatory is the creator of the signature. Moreover, the signature must be linked to the signatory himself and not another person. Hence, one cannot sign an e-signature on behalf of another person.
Furthermore, a signatory must have affixed his e-signature without duress or undue influence in order to be deemed authentic. The problem with such a requirement is that there are no mechanisms in place to ascertain this fact. Indeed, the mere presence of a signature on a document assumes that any transaction therein has been duly executed. Thus, this requirement can pose potential risks in practice.
Another way in which a digital signature is deemed to be authentic is if an alteration that is made subsequent to affixing the signature, is detectable. In such a scenario, the expertise of digital forensics can be employed to investigate and detect such computer-related crimes.
This section also hammers on the right of a person to prove the authenticity of a digital signature in any other way or to adduce evidence in relation to the non-authenticity of a digital signature.
5.0 SECTION 13 – CONDUCT OF A PERSON RELYING ON A DIGITAL SIGNATURE
The Act provides that a person who relies on a digital signature shall bear the legal consequences if he fails to verify the authenticity of the signature. Once again, digital forensic experts may be employed to facilitate such a verification. These experts normally use audit trails that are effective in establishing a signatory because of the type of information they contain. Audit trails have data that can establish an IP address, including the date, time and location when a contract was received, viewed and signed to prove the authenticity of a signature.
- SECTION 15 – NOTARISING, ACKNOWLEDGEMENT AND CERTIFICATION
The ambiguity lies in the fact that this section suggests that documents can be electronically notarised or made under oath with an electronic signature. However, section 4(h) of the Act provides that the Act does not apply to the swearing of affidavits or statutory declarations before a Commissioner for Oaths or notary public.
Similarly, in section 27 of the Act, reference is made to the acceptance of an E-Gazette, where the law requires a publication in the Gazette. However, a publication in the Gazette is excluded per section 4 of the Act.
It is therefore unclear whether all the documents listed in section 4 are actually excluded in practice because of these contradictory sections.
The next part of this article will briefly touch on electronic filing and the issuing of documents.
- SECTION 25 – ACCEPTANCE OF ELECTRONIC FILING AND ISSUING OF DOCUMENTS
Once again, reference can be made to the E-Justice system where one can file processes and make requests on a case. A court order for instance, can be applied for, via the online portal. This is to speed up the court process and make it more convenient.
The Justice Locator is a mobile application that has also been created for both lawyers and the general public to help individuals navigate through court cases. The app provides information on the registrar of a particular court, the cause lists of each court and even the physical location of the courts.
In the process of discussing the filing and issuing of documents, it is important to also shed light on the development in the law when it comes to the service of documents, which can now be effected through electronic means.
The High Court (Civil Procedure) (Amendment) Rules, 2019 (CI 122) which is an amendment of the High Court (Civil Procedure) Rules, 2004 (CI 47), provides for the electronic service of processes where at the time of initiation of an action or filing of appearance, a party can clearly state whether the service of any process or document should be by electronic means. A party who opts for this must endorse their telephone number and e-mail address on each process or document they file. It is important to note that the rules on personal service of a process or document are applicable to the electronic service of a process or document .
The final part of this article focuses on the admissibility and evidential weight of electronic records.
- ADMISSIBILITY AND EVIDENTIAL WEIGHT OF ELECTRONIC RECORDS
This section establishes that the admissibility of an electronic record shall not be denied as evidence in legal proceedings. However, the court takes into account, certain factors when assessing the evidential weight of an electronic record.
The court must take into account, the reliability of the manner in which the electronic record was generated, displayed, stored or communicated. The court may determine this reliability by their own analysis or with the assistance of a forensic expert. Judicial notice can be taken of certain mediums which are commonly known to generate and communicate information, particularly where that medium’s reliability is not in issue between litigants. An e-mail inbox for example, is commonly known to share e-mails sent to a particular address from the same or other e-mail addresses.
The court must also have regard to the reliability of the manner in which the integrity of the information was maintained. Integrity in the context of electronic evidence refers to evidence being complete and unaltered. The case of Republic v Alexander Tweneboa, unreported ruling of the High Court of Ghana (09/06/2016) Suit No. TB 15/13/15, gives an illustration as to how the court determines whether or not electronic evidence is complete and unaltered.
In this case, the Financial and Economic Division of the Accra High Court admitted electronic evidence of the accused’s e-mail activity, skype conversations and his internet browser activities to prove a charge of illegally providing mobile communication services through a medium commonly known as sim-boxing.
The information was extracted from his laptop hard disk and reproduced on a compact disk (CD). The court rejected a report accompanying the CD because it did not fully capture the electronic evidence on the CD. Clearly, the report could not be described as a complete and unaltered representation of the CD, thus the integrity of the information had not been maintained.
The court takes into account, the manner in which the originator of an electronic record is identified. The originator refers to the person who or on whose behalf the electronic evidence is purported to have been generated or sent. The nature of electronic mediums is such that although a person may own a laptop or mobile phone, he may not necessarily be the author of the data that is attributed to these mediums. In such scenarios, the court would normally hear technical evidence (from Expert witnesses) to determine whether the manner of identification of the alleged originator is reliable enough to assign the evidence to him. The courts even probe further to ascertain whether or not privacy rights were violated in identifying the originator.
Finally, a court must take into account all other relevant facts when assessing the evidential weight of an electronic record. The case of International Rom Limited v Vodaphone Ghana Limited & Another, unreported judgment of the Supreme Court of Ghana (06/06/16) Civil Suit No. J4/2/2016, provides guidance on what this element entails; it requires that any other pieces of evidence on the same issue be considered to arrive at a conclusion on the weight to attach to the issue.
In this case, the court considered both electronic and oral evidence to come to the conclusion that the probative value that could be attached to the electronic evidence was so eroded by the contradictory oral evidence on the record. It must be noted that the court refused to admit the electronic evidence in this instance simply because the party who sought to adduce it, also sought to adduce evidence which contradicted what it purported to prove.
In advocating the consideration of information technology into our legal system, we must be minded of the court’s reluctance in admitting electronic evidence during legal proceedings.
One can gain clarity on the scepticism of the court from the US case of Clair v Johnny’s Oyster & Shrimp Inc (1999) 76 F Supp 2D 773 at 774-774, where the court stated that it continued to warily and wearily view the internet as a catalyst for innuendo and misinformation. In spite of this, the pervasiveness of digital technology means that the court has to adapt to the digital age. The Supreme Court of Ghana has considered the admissibility of digital or electronic recording in proof of matters.
In the case of Raphael Cubagee v Michael Yeboah Asare & Others (Case No. J6/04/2017 SC) delivered 28th February 2018, the Plaintiff sought to tender in an audio recording of a telephone conversation that covered matters which were in contention in the case. The court considered the right to privacy protected under Article 18(2) of the 1992 Constitution and public interest to come to the conclusion that the secret recording ought to be excluded from the evidence.
In arriving at its decision, the court made reference to Section 52 of the Evidence Act, which provides for the exclusion of evidence if it will bring the administration of justice into disrepute or make the proceedings unfair. The court also intimated that Ghana is not persuaded to follow in the footsteps of those jurisdictions such as Canada and Italy, that permit secret recordings.
The supreme court also in the case of Abenaa Pokua v Agricultural Development Bank (Suit No. CA/J4/31/2015) delivered on 20th December 2017 (unreported), considered the privacy of the complainant as against public interest and concluded that the secret audio recording of her complaining about the excessive bonus received by the managing director of the bank, amounted to a contravention of her rights to privacy and freedom of speech.
- CONCLUSION
In conclusion, the author tackles the question of whether or not there has been promotion of legal certainty and confidence in electronic communications. To an extent, there is some confidence in electronic communications. The passage of the Electronic Transactions Act (Act 772) in itself shows that there is some recognition of these types of transactions and communication. It should be noted that the Supreme Court cases illustrated above do not indicate that such communications will not be admissible in a court of law.
The admissibility of electronic communication shall be determined on a case by case basis with the courts taking into consideration, the right to privacy of an individual and the public interest. Certainly, if it is envisioned that the exclusion of such electronic evidence will bring the administration of justice into disrepute, the court will lean towards admitting such evidence.
REFERENCES
- The Electronic Transactions Act 2008 (Act 772)
- 1992 Constitution of the Republic of Ghana
- Evidence Act, 1975 (N.R.C.D 323)
