Ghana has no law on jurisdiction in cyberspace, and before such a law can be drafted, the policy guidelines on which it will stand must first be settled. In this paper, I will be drawing principles from eDate and Martinez, from decided cases and from relevant international instruments, and recommending the policy guidelines Ghana should use to create this law.
Why the Need for This Law
Online, a single act touches many countries, so a dispute may land in several forums or in none. The internet permits wrongs on an unprecedented scale, territorial rules cannot answer its borderless nature, and wrongdoers route conduct through multiple countries to escape tracing.30
Drawing the Principles
In eDate and Martinez, the Court of Justice held that a person whose personality rights are infringed online may sue in one forum for all the damage caused, choosing between the state where the publisher is established and the state of his centre of interests, ordinarily his habitual residence though it may rest on professional activity.31 Two principles emerge: one forum for the whole injury, anchored to the victim's real life. These alone cannot build a law, so we turn to those who have written one.
Europe has legislated the field through the Brussels I Regulation, its Recast, and the Lugano Convention, which extends the same scheme beyond the European Union. The Recast supplies the foundations: a defendant is sued at his domicile; in tort, where the harmful event occurred; and where parties have chosen a court by exclusive agreement, every other court must stay its proceedings.32 These rules assign jurisdiction generally; the internet demanded principles of its own.
The courts built them in Zippo, which asks whether the defendant has minimum contacts with the forum through purposeful availment, whether the claim arises out of those contacts, and whether jurisdiction is reasonable.33 World-Wide Volkswagen adds that the defendant's nexus must be such that he should reasonably anticipate being haled into court there.34 Zippo then grades websites on a sliding scale, from passive presence, through interactive engagement, to active reaching into another state.
Applying these principles to facts, however, courts have carved derogations a lawmaker should take advantage of. In defamation, jurisdiction follows where the injury was suffered.35 In contract, it follows the place of performance where the trader directs his activities to the forum.36 It does not matter that the contract was not concluded at a distance.37 Parties may consent to a forum, as Ryanair's terms of use successfully did.38 And between private users, a mere eBay sale is no purposeful availment absent further conduct directed at the forum.39 Finally, the Budapest Convention grounds jurisdiction on territory and nationality and obliges states to consult where claims overlap,40 while the Malabo Convention presses Africa toward harmonized legislation and mutual assistance.41
These principles are the guidelines I recommend: sue a defendant at his domicile as the general rule; place tort jurisdiction where the harm occurs, and for online injuries to personality, at the victim's centre of interests; measure foreign defendants by purposeful availment on Zippo's sliding scale; preserve the derogations for defamation, contract, consent and private dealings; and found criminal jurisdiction on territory and nationality, harmonized with Africa and consulting where claims collide. On these, Ghana can write a law that gives certainty where none exists.