Should Ghana Recognize a Right to Be Forgotten? Balancing Data Privacy and Freedom of Expression in the Digital Age

INTRODUCTION

The right to be forgotten entered the world of international law in the landmark case of Google Spain SL v AEPD [1]in 2014, when the Court of Justice of the European Union ruled that there are situations in which a person may ask a search engine to remove personal information that is outdated, excessive or irrelevant, even if the publication was legal. The same does not exist in Ghana. Ghana has a Data Protection Act 2012 (Act 843), which has a more limited right to erasure, and in its jurisprudence, the cause of freedom of expression has been largely about secret recordings, defamation and investigative journalism, and not digital delisting. This article holds that Ghana should have a right to be forgotten, but not in the manner as found in Europe, where it is a right that has been interpreted as wide-ranging, giving the right to delist from search engines, but rather as a right that has been carefully balanced against the constitutional right to free expression. A right that is essential to preserve dignity and rehabilitation in an age of permanent digital memory, but must also be limited by public interest, journalistic and historical exceptions and be monitored and implemented through clear and legally reviewable processes rather than used as a means of censorship or applied to the powerful as a cloak for immunity from accountability. This essay would proceed in parts; Part I will discuss the legal framework, judicial decisions and the position of the article; Part II will be the conclusion.

PART I

Ghana’s data privacy framework operates on three interconnected levels namely the constitutional, statutory, and institutional frameworks. At the constitutional level, the 1992 Constitution of Ghana provides the foundation for privacy protection while simultaneously safeguarding freedom of expression. Article 18(2) of the 1992 Constitution of Ghana   guarantees every individual protection from interference with the privacy of their home, property, correspondence, and communications, subject only to what is lawful and necessary. At the same time, Articles 162 to 164 of the 1992 Constitution of Ghana    entrench media freedom, prohibit censorship, and permit restrictions only where reasonably required in the interests of national security, public order, public morality, or the protection of the rights and reputations of others.

At the statutory level, Ghana’s main law for the processing of personal data is the Data Protection Act, 2012 (Act 843). This statute puts in place a regulatory framework based on principles of data protection that are very much in line with the old EU Data Protection Directive. Under section 33 of Act 843, for instance, a data subject has the right to have a controller correct or delete any personal data found to be inaccurate, misleading, incomplete, or otherwise excessive or outdated. The same provision allows for the destruction of such data once there is no longer a legal basis for its retention.

At the institutional level, enforcement of the Act falls to the Data Protection Commission, the statutory regulator charged with institutional oversight of compliance. While one could say section 33 of Act 843 is the Ghanaian equivalent of a right to be forgotten, it is not as expansive as the European model. Where the EU GDPR [2]requires a wider look at whether it is still proportionate to have lawfully obtained information indexed or accessible, section 33 of Act 843 is more concerned with accuracy and stopping unlawful retention. There is an effort to change this with a draft Data Protection Bill that would bring Ghana closer to Europe by creating an express right to erasure, complete with a 30-day compliance window and duties for third parties in possession of the data. But as things stand, the Bill has not been made law[3].

The statutory framework is complemented by constitutional jurisprudence that illustrates how Ghanaian courts balance privacy against freedom of expression. While no court in Ghana has yet ruled on a European-style delisting claim, the existing constitutional privacy jurisprudence provides useful insights on how Ghanaian courts balance privacy against freedom of expression. In Raphael Cubagee v Michael Yeboah Asare[4], the  Supreme Court held that the secret recording of a telephone conversation of another person was an unjustified interference with the constitutional right to privacy since the intrusion could not be justified under any of the exceptions in Article 18(2) of the 1992 Constitution of Ghana. At the other end of the constitutional continuum, in Ghana Independent Broadcasters Association v Attorney-General [5]it was confirmed that freedom of expression is the pillar of democratic self-government, informed electoral participation and public accountability, and is a preferred constitutional freedom from which other liberties stem. Between these two decisions is the  Dery v Tiger Eye PI [6], the Supreme Court balanced the interests of a judge in privacy and confidentiality with the right of the public to information and refused to grant a permanent injunction, allowing publication to continue in the public interest. And the earlier Tommy Thompson Books case [7]also emphasized that any restriction on press freedom must be narrowly construed and justified by demonstrable harm, not inconvenience or embarrassment. These authorities collectively indicate that Ghanaian courts protect privacy in the event of secret or excessive intrusion, but place significant weight on freedom of expression where the information relates to matters of legitimate public interest. This balancing strategy is very much in line with the constitutional exercise that would be required of any Ghanaian right to be forgotten, as such claims are about information that is true and lawfully published but whose continued online accessibility may, with the passage of time and changing circumstances, become disproportionate to the legitimate interests served by its continued prominence. That constitutional exercise is, in substance, the very test any Ghanaian right to be forgotten would require, which is why the case for recognising one, and for the form it must take, rests on two considerations.

First, the harm that a right to be forgotten tries to redress is not covered by Ghana’s existing right of erasure. Section 33 of Act 843 applies only to inaccuracy, excess or the expiry of lawful authority to retain data; it is not concerned with the scenario that defines European practice that states that where data is accurate and lawfully published, but has become disproportionate by reason of lapse of time and loss of public relevance of the individual[8].  For instance, take a person cleared of long-forgotten allegations, the reformed criminal, or the citizen whose teenage blunder is now the first thing that pops up when someone searches their name. None of them has any statutory avenue under Act 843 as it is. That gap widens yearly, since Ghana’s digital economy and social media use keep expanding, and reputational damage today is search-engine-mediated and effectively permanent, a consequence the drafters of a 2012 statute had little reason to foresee.

Second, any Ghanaian right to be forgotten must be built around the primacy Ghanaian courts have repeatedly given free expression and press freedom. Europe’s erasure right operates within a mature regulatory and judicial system; Ghana’s erasure right, by contrast, is quite nascent and needs a more pronounced reflection of technological concerns to better balance privacy rights and freedom of expression required for delisting decisions. Carelessly legislated, such a right could reproduce the very suppression of lawful expression on matters of public interest that Ghanaian jurisprudence has guarded against, whether investigative journalism, judicial accountability reporting, or historical record-keeping. Accordingly, this article argues that Ghana should not simply adopt a right to be forgotten, but that it must be legislated as a narrow, exception-laden right subject to procedural oversight, not handed over as an open-ended power to sanitise the past.

Even though implementing this is going to prove difficult because Ghana’s Data Protection Commission is fairly young and under-resourced and ill-equipped for the proportionality judgments delisting requires. Global platforms responsible for reputational harm sit outside Ghanaian jurisdiction, making enforcement doubtful. Political and business elites could exploit a loosely drafted right to suppress corruption reporting rather than protect stale, private information. And the draft Data Protection Bill remains unpassed, leaving no settled standard for weighing privacy against expression. The better route is legislation, not litigation, the Parliament should pass the Bill’s erasure provisions with four safeguards, a public interest override, a journalism and archival exemption, a proportionality test supervised by the Commission and the High Court, and a periodic sunset review, so the right protects dignity without becoming a tool against accountability.

PART II

CONCLUSION

Ghana can no longer ignore the realities of permanent digital memory, yet its constitutional commitment to free expression leaves no room for a sweeping European-style right. The answer is neither silence nor imitation, but calibration consisting of a narrow, statutorily bounded right to be forgotten, hedged by public interest and journalistic exemptions, supervised by the Data Protection Commission and the courts. The existing erasure provision is too thin for this need, and Ghana’s expressive freedoms too important to sacrifice to a broader one. The right, recognized this way, lets individuals move past their history without letting it, especially the powerful, quietly disappear.

References

Legislation

Constitution of the Republic of Ghana,1992

Data Protection Act 2012(Act 843)

Cases

Ghana Independent Broadcasters Association v Attorney-General [2017–2020] SCGLR 362

Dery v Tiger Eye PI [2015-2016] 2 SCGLR 812

Republic v Tommy Thompson Books Ltd, Quarcoo and Coomson [1996–97] SCGLR 804

Raphael Cubagee v Michael Yeboah Asare & 2 Others (2018) JELR 68856 (SC)

Google Spain SL v Agencia Española de Protección de Datos (AEPD) (Case C-131/12) ECLI:EU:C:2014:317

Secondary sources

Ghana Data Privacy Laws: Data Protection Act 2012 (Act 843) Complete Guide (2026)’ (Recording Law, 21 March 2026) https://www.recordinglaw.com/world-laws/world-data-privacy-laws/ghana-data-privacy-laws/ accessed 7 July 2026.

[1] Google Spain SL v Agencia Española de Protección de Datos (AEPD) (Case C-131/12) ECLI:EU:C:2014:317

[2] cf Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) [2016] OJ L119/1, art 17.

[3] ‘Ghana Data Privacy Laws: Data Protection Act 2012 (Act 843) Complete Guide (2026)’ (Recording Law, 21 March 2026) https://www.recordinglaw.com/world-laws/world-data-privacy-laws/ghana-data-privacy-laws/ accessed 7 July 2026.

[4] (2018) JELR 68856 (SC)

[5] Ghana Independent Broadcasters Association v Attorney-General [2017–2020] SCGLR 362.

[6] Dery v Tiger Eye PI [2015-2016] 2 SCGLR 812.

[7] Republic v Tommy Thompson Books Ltd, Quarcoo and Coomson [1996–97] SCGLR 804.

[8] Google Spain (n1)