The Data Protection Act of 2012 (DPA 2012) in Ghana uses the entity's link or presence in the jurisdiction as a factor to determine the applicability of the law.

Text of Relevant Provisions

DPA 2012 Art.45(3e):

"(3) For the purposes of this Act the following are to be treated as established in this country:(e) any person who does not fall within paragraphs (a),(b), (c) or (d) but maintains an office, branch or agency through which business activities are carried out in this country."

DPA 2012 Art.45(3d):

"(3) For the purposes of this Act the following are to be treated as established in this country:(d) an unincorporated joint venture or association operating in part or in whole in this country; and"

DPA 2012 Art.45(2):

"(2) A data controller who is not incorporated in this country shall register as an external company."

Analysis of Provisions

The DPA 2012 in Ghana uses the entity's link or presence in the jurisdiction as a key factor in determining the law's applicability. This is evident from the provisions that define what constitutes being "established in this country" for the purposes of the Act.

Article 45(3e) extends the law's applicability to "any person who... maintains an office, branch or agency through which business activities are carried out in this country". This provision captures entities that have a physical presence in Ghana, even if they are not formally incorporated there. The use of the term "any person" suggests that this could apply to both natural and legal persons.

Article 45(3d) further broadens the scope to include "an unincorporated joint venture or association operating in part or in whole in this country". This provision ensures that even informal business arrangements fall under the law's purview if they have operations in Ghana.

Article 45(2) addresses entities not incorporated in Ghana, stating that they "shall register as an external company". This requirement demonstrates the law's intent to bring foreign entities under its jurisdiction if they process data in Ghana.

These provisions collectively reveal the lawmakers' intention to cast a wide net, ensuring that entities with various forms of presence or operations in Ghana are subject to the country's data protection regulations.

Implications

The broad definition of establishment in Ghana's DPA 2012 has several implications for businesses:

1. Physical Presence: Companies with any form of physical presence in Ghana, such as an office, branch, or agency, will be subject to the law, regardless of where they are headquartered or incorporated.
2. Partial Operations: Even if a company only conducts part of its operations in Ghana, it may still fall under the law's jurisdiction.
3. Unincorporated Entities: Joint ventures and associations operating in Ghana are not exempt from the law, even if they are not formally incorporated.
4. Foreign Companies: Entities not incorporated in Ghana but processing data in the country must register as external companies, bringing them under the law's purview.
5. Broad Applicability: The catch-all nature of Article 45(3e) suggests that even minimal business activities in Ghana could potentially trigger the law's applicability.

These provisions indicate that businesses operating in or having any significant connection to Ghana should carefully consider their obligations under the DPA 2012, as the law's scope is designed to encompass a wide range of entities with varying degrees of presence in the country.