Facebook/Social Media Law – Be Careful Who You Tag

Our current jurisprudence has not caught up with developments in social media yet. Thus, there is no specific law against tagging and posting pictures onto your facebook page. To this, pictures you post or tag on facebook might not be actionable. However, this should not be interpreted as a blanket permission to post and tag any pictures you want on facebook. In the proper context, some posts and tagging may be actionable.

First, the law guarantees people their right to privacy. Although one may argue that joining facebook is an implied consent that your pictures can be posted and tagged by others, the test will be one of reasonableness. The question for consideration will be, are the pictures such that it can be reasonable inferred that the person in the picture impliedly gave consent for it to be posted? There may also be relief where posts or tagging were done innocently.

In the right context, pictures and tagging on facebook may be actionable. For instances, in the proper context, it may constitute harassment, invasion of privacy or causing emotional harm. When used for commercial purposes, it can open the culprit up to the tort action of passing off. If the person in the picture owns the copyright to the pictures then there may also be issues of copyright infringements.

JP Morgan Coming to Ghana

JP Morgan has announced that it will enter the Ghana banking market by the first quarter of next year. This is indeed welcome news for the burgeoning banking industry in Ghana.

The entry of JP Morgan offers numerous opportunities for the financial sector in the country. First it will further increase the competition in the sector and eventually culminate in more efficiency and effectiveness in the sector. The small banks which dominate the banking scene in Ghana will also have access to credit from JP Morgan instead of looking overseas for credit with it attendant increased transactions cost. We are likely to see an uptick in the already booming construction business as more credit becomes available.

Over all, this move also signifies that the Ghanaian economy is maturing and growing. Most importantly, it will indicate to other industry leaders that it ok to invest in Ghana.

Employment Law – Ownership of Cell Phone Lines

The general rule is that the employee must surrender all company property to the employer when the employee/employer relationship ends. Absent any explicit agreement to the contrary, this general rule becomes blurred when the property involves a cell phone line used by the employee. Under common law, it is obvious that the telephone handset is the property of the employer if indeed the employer bought the handset for the use of the employee. The ownership of the telephone line (the telephone number) however can be the subject of dispute. In one complaint, the employee was terminated after a downsizing exercise. Among other things, the employer requested that the employee surrender her telephone number. The request was quiet distressing to the employee as she had used the same number as her only telephone line for 12 years. In addition to using the number for office related work, the number is also listed on her bank account, tax documents and she had used the number to establish other important personal connections. The company was reluctant to release the telephone number because they feared they might lose the business of some clients who will try to reach the company through the number. This complaint was amicably settled without resort to the court. However because of the increasing use of cell phones, it is very easy for a similar case to end up in the court soon.

To prevent a possible dispute it is very important that the parties agree at the front end of their relationship as to the ownership of cell phone numbers.

Since there is currently no legislation in Ghana covering such matters, a dispute of this nature will be decided based on facts adduced by the parties at trial. It is likely to be decided in favor of the party who is able to adduce compelling evidence to prove two things. That he is the rightful owner of the telephone line and that more harm will be occasioned if the number is taken away. Here are some of the issues the courts may consider in reaching a decision on this matter.

Who purchased the right to use the number originally? – did the employee have the use of the number before the employer-employee relationship started? – did the employer purchase the line for the use of the employee?

Who is responsible to pays for the phone line – employee or employer? – Who pays for the phone line?

What is the phone line substantially used for – was it used substantially for the employer’s business or for the employee’s private dealings?

Is this the only telephone line the employee uses? Can the employer forego the use of the phone line without any great harm?

Has the employer acted in a way that will reasonably suggest to the employee that the employee will have ownership of the number after their relationship ends? Has the employee also demonstrated such a behavior?

Real Estate Investments in Ghana

One of the fastest growing sectors in the Ghanaian economy is the Real Estate industry. In fact this is not strange to industry analyst especially as the World Bank’s Global Economic Prospect Report has projected that Ghana will become the fastest growing economy in fiscal year 2011 in sub-Saharan Africa. The report singled out the construction industry as one of the sectors to see a significant growth in the next couple of years. This report is coming at the heels of 10 years of growth that has seen a significant increase in income levels within the economy.
This positive outlook has obviously led to a sustained increase in investments in the Ghanaian economy. The Real Estate industry in particular seems to be doing very well especially based on the fact that the country presently has a staggering housing shortfall in both the residential and commercial sectors in the urban areas. It is not surprising therefore that the returns on investment are lucrative in this sector. Office and housing units are often sold out before construction is completed. However, investments in the Real Estate industry are fraught with many pitfalls and the astute investor must tread carefully in order to maximize their return on investment. There are many latent pitfalls and potential transactional costs in the Real Estate industry which can trip even the most experienced investor.
The most critical of these latent pitfalls is the land tenure system in Ghana. The Ghanaian Constitution provides that no interest in or any right over stool lands (stool lands make up the bulk of land interest in Ghana) shall be created which vest in any person or body corporate a freehold interest in land. The constitution states further that no interest or right over any land shall be created which vests in any person who is not a citizen of Ghana a freehold interest in land in Ghana. Thus effectively, majority of Real Estate properties are constructed on lands that have been leased. A lease by definition must have a beginning and an end date. In Ghana, the industry practice is to grant a lease for 99 years in the case of individual leases.
The standard lease agreement in practice has a clause stipulating that the lessor must obtain permission from the head lease before any sub lease or assignment can be granted. It is imperative that an investor obtains from the lessor a properly executed permission from the head lease before any money is paid. Failure to obtain a properly executed permission from the head lease may lead to undue delay in the registration process or even possible litigation.
Since the lessor can only grant you what he has, an investor must make sure the remainder of the lease is adequate for his or her specific investment needs. Thus if the remainder of the original lease is 20 years, then the most interest you can obtain under the circumstance is an assignment of the remaining 20 year interest.
The lease document must also include an option for renewal. Since there is currently no legislation as to how to deal with ownership rights and disputes in the event that the lessor decides not to renew the lease after the term has expired, it is very critical that the parties agree among themselves at the front end how the land and any investment on the land will be dealt with at the expiration of the lease.

Exporting Goods to Ghana

There are three main ways a foreign company can export goods to Ghana;

1. Distribute the goods in Ghana directly
2. Form a joint venture with a Ghanaian company and have them do the distribution in Ghana
3. Locate a qualified Ghanaian distributor/agent to undertake distribution in Ghana

Assuming you have your correct market data showing the need for your goods in Ghana, you must undertake two important steps before your first consignment of goods hit the shores of Ghana. First you must conduct due diligence to find out the broad outlines of the legal regime pertaining to export of goods into Ghana. Second, you must conduct due diligence to help select a vendor that will assist with turning your goods into cash.

If the company decides to distribute the goods directly within the Ghanaian market then the due diligence on legal regime affecting exports must be very thorough. The company must know government regulations pertaining to the goods, intellectual property rights and other licensing processes within Ghana.

Direct distribution can be very cumbersome and time consuming, especially for small and medium size companies. To be effective at direct distribution you will have to spend lots of resources learning the ropes of the local business practices. For the small or medium size company this can be a bottomless pit with the potential to cut very deep into your profit margin. A better option will be to locate a peer rated local distributor/agent with a wide distribution network throughout the country. Distributors are already well versed in the local business practices and they can assist with adopting a winnable distribution strategy to introduce the goods into the Ghanaian market.

A joint venture (JV) can also be very effective in getting your goods into the Ghanaian market. Like distributors, a JV partner is more knowledgeable about the ropes of doing business in Ghana –licensing issues, export restrictions, intellectual property rights regimes, government regulations, etc. Depending on the type of JV, the local partner may share some of the risks of distributing the goods in the Ghanaian market. One main difference between the JV and distributors is that unlike distributors who are normally paid a set fee for their services, JV partners share in the overall profits of the venture, so JV partners are more incentivize to work for the success of the venture. It should be noted however that JV’s might not be ideal for some small companies because of the relatively large capital requirement the Ghana government stipulates to register a JV. There are also requirements and restrictions about transferring profits outside the country.
In spite of whatever option you choose to distribute your goods, you must first take all necessary steps to know the market you will be operating in. Are the business and political climate conducive for your type of business? Then a sound marketing strategy that among other things accesses the strength and weaknesses of your product will be good to ensure deep penetration of the Ghanaian market.

Dangerous Bedfellows - Politics and Doing Business in Africa

When doing business in African, one is always tempted to use friendly politicians to advance processes. Sometimes friendly politicians and people in ‘high’ places will help expedite the granting of a mining license, a timber concession, an oil block allocation or a telecom license. This type of help can be very profitable as it will help bypass the red-tape laden bureaucratic systems of African countries. Thus there are many professionals who sell their services by claiming that they know the 'right' people to fast track business processes in African countries. Many business folks find these services appealing because as the popular adage goes “in business time is money”. One must note however that there are many pitfalls in mixing business with politics in Africa. You must tread carefully so that your business is not labeled a benefactor of a particular political party or faction. Four years or eight years is always around the corner and the reins of power change very quickly. Once your business is labeled, the business may become the target of political wrath once there is a power change.

Here is what you have to do to avoid being weather the storm. Always insist that due process is followed in all business processes. The politician might help expedite your concession or license, but make sure that you comply with all stipulations of the law and any administrative procedures. The next political party will have very little ammunition (evidence) to use to withdraw your license or concession. They certainly will have noting on you to impute killer fines on your business. As much as possible, never attend a political rally or make political pronouncements in public. Although many African countries have turned the corner, there are still a few relics of the past that exist.

Employment Law – Social Networking and Blogs

The internet has provided a relatively cheap and efficient way to disseminate information throughout the world. Today, medium size companies and your smallest mom and pop company can boast of a website. Thanks to free sites like Worldpress, Google blogger, Facebook etc, ‘star’ employees are creating Facebook pages, blogs and twitter accounts to promote themselves and their companies. Anchors at Radio and Television stations all have blogs and Facebook pages. Some government officials have Facebook and other social network accounts with 1000s of ‘friends’ through which they send government information and raise funds.

The important question is who owns these sites. What happens when the employee/employer relationship ends? The employee will definitely agree to remove any reference to his former employer from the site. But the question still remains, who keeps these sites with all the 1000s of followers. The law is currently silent on this issue. However, in the event of a litigation to determine ownership, these are some of the questions that may arise; was there any prior written agreement? When was the page created? What is the nature of the content? Is the page updated substantially during work time? etc. These issues can be very contentious because the large list of contacts/followers may be crucial for an employee to launch a new career. The employer who loses these 1000s of contacts/followers may lose a substantial audience or clientele. The company may have to spend valuable resources and time to build another network of audience/clientele/followers.

To avoid a potential costly law suit, the parties may take a proactive step by establishing a written agreement at the front end to determine the ownership of social networking sites when the employer-employee relationship ends.