How does your country’s legal regime handle issues of transactions that are required to be in ‘writing’ with a signature; and with email, shrinkwrap, clickwrap and browsewrap when parties contract in cyberspace.
In Ghana, the validity of certain transactions has long depended on writing and signatures. Contracting has since moved into cyberspace, where parties agree by email, shrinkwrap, clickwrap and browsewrap. In this paper, I will be examining how Ghana’s legal regime carries these formalities into cyberspace and assessing how it treats each mechanism.
Writing and Signatures in Ghana’s Legal Regime
A contract is an agreement the law will enforce, formed when an offer is accepted with the intention to create legal relations and supported by consideration. Ghanaian law attaches no general requirement of form.59 A guarantee, for instance, is void unless written and signed.60
Negotiation online travels the familiar path from invitation to treat through offer to acceptance. What changes is the medium, because the parties now exchange electronic records, being data created, transmitted or kept in electronic form.61 The Electronic Transactions Act 2008 (Act 772) gives these records contractual force, attaching full validity to agreements which take shape wholly or in part over an electronic medium,62 and a statutory demand for writing is satisfied once information is rendered electronically, accessible and retainable for later reference.63 The equivalence has limits, since section 4 withdraws wills, conveyances of immovable property and similar instruments.64
Signatures receive the same treatment. Where a law requires a signature, a digital signature satisfies it,65 and a digital signature is data joined to or logically associated with other data, intended by its user to function as a signature.66 The door is widened further to secure and verifiable signing methods which the parties adopt or which industry practice treats as reliable.67
Contracting by Email
Email shows these provisions at work. In Atuguba & Associates v Scipion Capital (UK) Ltd, the Supreme Court confirmed that an offer and acceptance exchanged over email produce a contract the courts will enforce.68 The Act fixes receipt at the moment a record enters the information system the addressee has designated,69 mirroring the receipt rule for instantaneous communications.70 An acceptance sent astray operates, if at all, against the interest of the party responsible for the misdirection.71
Shrinkwrap, Clickwrap and Browsewrap
Cyberspace has also produced standard terms which bind through conduct. The shrinkwrap license encloses its terms in the software packaging, binding the purchaser who uses the product after an opportunity to read them.72 The clickwrap agreement moves the same idea online, and the affirmative click of assent makes it readily enforceable.73 The Act supports both, since a person dealing with an electronic agent escapes terms which could not have been accessed before the contract formed.74 Browsewrap strains this accessibility standard. Its terms sit behind a hyperlink and claim to bind by mere use, and although foreign courts have upheld them against commercial users,75 no provision of the Act squarely reaches assent by browsing.
My stance is that the regime carries the formalities into cyberspace convincingly, while browsewrap is where it runs out of language. Section 24 sharpens the difficulty by letting parties vary sections 5 to 23 by agreement,76 so the drafting platform holds the advantage over the browsing consumer. I recommend an amendment to Act 772 extending the section 17(2) accessibility standard to all online contracting, so that browsewrap terms bind only where conspicuous notice precedes use. Until then, Ghanaian courts should extend the reasoning in Atuguba to assent by conduct case by case.