قانون الإعلام والاتصالات لعام 2009، غامبيا

PART I – FUNCTIONS OF THE MINISTER AND THE AUTHORITY

1. Principles
2. Functions of the Minister
3. Additional functions of the Minister
4. Functions of the Authority

PART II – AUTHORISATION OF INFORMATION AND COMMUNICATIONS SYSTEMS AND SERVICES

1. Licensing of information and communications services, systems and apparatus
2. Private networks
3. Alternative infrastructure
4. Exclusivity
5. Exclusive licence for rural telephony service
6. Licence and other fees
7. Administrative charges and regulatory fees
8. Application procedures
9. Applications requiring the allocation of frequencies
10. Publication of information on application procedures
11. Publication of applications for licences and authorisations
12. Application evaluation process
13. Reasons for denial
14. Limit on number of licences
15. Non-transferability of licences
16. Term and renewal of licences
17. Modification of licences
18. Revocation of authorisation
19. Termination of authorisation

PART III – TERMS AND CONDITIONS OF INFORMATION AND

COMMUNICATIONS LICENCES

1. Principles of licence conditions
2. Procedures governing licences
3. Applicability of licence conditions
4. Licence conditions
5. Specific conditions
6. Emergency service obligation
7. Services for the disabled
8. Rights of licensees
9. Rights to use land
10. Sharing of property and facilities
11. Compensation
12. Enforcement of conditions
13. Monitoring of licence compliance
14. Provision of information
15. Confidential information
16. Sanctions
17. Harmful interference

PART IV – ENSURING COMPETITION

1. Fair competition
2. Market analysis
3. Relevant markets
4. Determination of significant market power
5. Imposition of obligations on undertakings having significant market power
6. Cost accounting obligation
7. Local loop unbundling
8. Carrier selection
9. Infrastructure sharing
10. Number portability
11. International roaming
12. Fixed-to-mobile call termination
13. Evolution of the regulatory framework to promote the development of the internet

PART V – ACCESS AND INTERCONNECTION

1. Right to interconnection
2. Principles
3. Terms and conditions of interconnection agreements
4. Non-discrimination
5. Legal regime of interconnection agreement
6. Good faith negotiations
7. Content of interconnection agreements
8. Interconnection charges
9. Technical standards
10. Calling line identity
11. Points of interconnection
12. Requests for new forms of interconnection
13. Confidentiality of information
14. Review of interconnection agreements
15. Modification of interconnection agreements
16. Reference interconnection offer
17. Publication of a reference interconnect offer
18. Relevant cost orientation
19. Monitoring of interconnection tariffs
20. Communication of information to the Authority
21. Co-location
22. Interconnection disputes

PART VI -REGULATIONS OF TARIFF AND QUALITY OF SERVICE

1. Tariff regulation
2. Price Caps
3. Quality of service
4. Obligations of authorised operators

PART VII – SPECTRUM MANAGMENT

1. Interpretation
2. Allocation and assignment of spectrum
3. National Spectrum Allocation Plan
4. Categories of frequency bands
5. Application procedures
6. Environmental impact statement
7. Migration of users
8. Harmful interference
9. Restrictions
10. Radio monitoring
11. Co-ordination of frequency usage
12. Right to enter building, etc.

PART VIII – MANAGEMENT OF NUMBERS

1. Responsibility
2. National Numbering Plan
3. Management of the National Numbering Plan
4. Rules on numbering
5. Publication of the National Numbering Plan
6. Conditions for the use of numbers
7. Revocation of the right to use numbers
8. Access to emergency numbers
9. Information of the use of numbers
10. Use of databases
11. Electronic addressing

PART IX-TYPE APPROVAL OF TERMINAL EQUIPMENT

1. Principles
2. Type approval

PART X – UNIVERSAL ACCESS AND SERVICE

1. Non-discrimination in service provision
2. Licensees to offer uniform services
3. Universal service obligation
4. Cooperation in the management of universal access and service
5. Designation of universal access and service providers
6. Reviewing the scope of universal access and service
7. Funding of universal service
8. Universal Service Fund
9. Fund Board
10. Fund Secretariat
11. Fund Manager

PART XI – PROVISIONS CONCERNING THE INTERESTS AND RIGHTS OF END USERS

1. Principles
2. Right to deposit or security
3. Calling line identification
4. Standard contracts
5. Provisions regarding contracts
6. Amendments to terms of subscriber contracts
7. Dispute resolution
8. Temporary closure of connections
9. Removing restrictions or re-opening of connections
10. Right to close connections
11. Termination of contracts
12. Itemised billing
13. Numbering changes

PART XII – DISPUTE RESOLUTION

1. Complaints of unfair competition
2. Disputes between operators
3. Disputes between operators and consumers

PART XIII – PROCESSING OF PERSONAL DATA AND PROTECTION OF PRIVACY

1. Principles
2. Intercept
3. Measures to ensure privacy of communications
4. Security of information and communications services
5. Storage of traffic data
6. Data for the identification of subscribers
7. Information to be provided to subscribers
8. Maintenance of subscriber lists
9. Use of communications for direct marketing
10. Itemised billing and privacy
11. Prevention of calling line identification – outgoing calls
12. Prevention of calling or connected line identification – incoming calls
13. Publication of information for the purposes of calling or connected line identification
14. Co-operation of communications providers for the
    purposes of regulations calling and connected line
    identification
    
15. Tracing of malicious or nuisance calls
16. Emergency calls
17. Termination of automatic call forwarding
18. Unsolicited goods, services or communications
19. Unsolicited calls for direct marketing purposes
20. Use of automated calling systems
21. Use of facsimile machines for direct marketing purposes
22. Use of electronic mail for direct marketing purposes
23. Use of electronic mail for direct marketing purposes where the identity or address of the sender is concealed
24. Information to be provided for the purposes of direct marketing

PART I – INTERPRETATION OF THIS PART

161. Interpretation of this Part

PART II - FUNCTIONS OF THE MINISTRY

162. Functions of the Ministry in relation to Information Society Issues

PART III – COMPUTER MISUSE AND CYBER CRIME

1. Unauthorised access to computer data
2. Access with intent to commit offences
3. Unauthorized access to and interception of computer
   service
   
4. Unauthorised modification of computer material
5. Damaging or denying access to computer system
6. Unlawful possession of devices and data
7. Unauthorized disclosure of password
8. Publishing of Information which is obscene in electronic form
9. Re-programming of mobile telephone
10. Possession or supply of anything for re-programming mobile telephone
11. Computer-related extortion, fraud and forgery

PART IV – PROTECTION OF CHILDREN

1. Indecent photographs of children
2. Deletion order

PART V – ELECTRONIC RECORDS AND ELECTRONIC SIGNATURES

1. Sphere of application
2. Legal recognition of data messages
3. Incorporation by reference
4. Requirement for writing
5. Other requirements
6. Retention
7. Retention of information in original form
8. Production of document or information
9. Expression of intent or other statement
10. Attribution of electronic record and signature
11. Effect of change or error
12. Acknowledgement of receipt of electronic message
13. Admissibility and evidential weight of data messages
14. Signatures
15. Recognition of foreign certificates and electronic
    signatures
    
16. Notarisation, acknowledgement and certification
17. Equal treatment of signature technologies
18. Conduct of a person relying on an electronic signature
19. Conduct of the certification service provider
20. Trustworthiness
21. Generating key pair
22. Acceptance of certificate
23. Control of private key
24. Initiating suspension or revocation

PART VI – ELECTRONIC TRANSACTIONS

1. Formation and validity of contracts
2. Automated transactions
3. Variation by agreement between parties
4. Time of dispatch
5. Time of receipt
6. Place of dispatch and receipt
7. Information to be provided
8. Cooling-off period
9. Unsolicited goods, services or communications
10. Performance
11. Applicability of foreign law
12. Non-exclusion

PART VII – E-GOVERNMENT SERVICES

1. Acceptance of electronic filing and issue of documents
2. Requirements may be specified

PART VIII – REGULATION OF [SERVICE PROVIDERS/CERTIFICATION AUTHORITIES]

1. Requirement for a licence
2. Licence for electronic certification services
3. Accreditation of foreign products and services
4. Trustworthy system
5. Disclosure
6. Issuing of certificate
7. Representations on issue of certificate
8. Suspension of certificate
9. Revocation of certificate
10. Revocation without subscriber's consent
11. Notice of suspension
12. Notice of revocation

PART I – FUNCTIONS OF THE MINISTER AND THE AUTHORITY

1. Functions of the Minister in relation to broadcasting content
2. Objects of the Authority in relation to broadcasting content
3. Functions of the Authority in relation to broadcasting content

PART II – LICENSING OF BROADCASTING SERVICES

1. Requirement for a broadcasting licence
2. Application for a broadcasting licence
3. Eligibility and evaluation of applications
4. Grant or refusal of a broadcasting licence
5. Duration and renewal of a broadcasting licence
6. Transfer and surrender of licence
7. Revocation of licence
8. Suspension of licence
9. Register of licences

PART III – DUTIES OF LICENSEES AND CONDITIONS OF BROADCASTING LICENCES

1. Duties of licensees
2. Conditions of a broadcasting licence
3. Compliance to the licence and this Act
4. Complaints to the Authority concerning broadcasts
5. Complaints procedure of licensee
6. Counterversion

PART I -FUNCTIONS OF THE MINISTER AND THE AUTHORITY

Principles

6. (1) The Government shall

(a)

guarantee the independence of the competent authorities with respect to all organizations providing networks, equipment or services in the information and communications sector, or otherwise active in the sector and

(b)

ensure complete and effective separation of the regulatory function from the activities associated with ownership or control.

(2)

The Government shall ensure that all policy and regulatory functions for the sector are performed by the respective policy and regulatory bodies in an independent, a proportionate, an impartial and a transparent manner with a view to achieving the following objectives

(a)

adopting of the principle that policy and regulation should be technology-neutral, and therefore a prohibition against granting un-justified advantage to any particular technology without prejudice to the adoption of suitable measures for the promotion of specific services, where the measures are necessary for the pursuit of the regulatory objectives stipulated in this Act; and

(b)

promoting the creation of an open and competitive market in a non-discriminatory and transparent manner for communication networks and services, to ensure

(i)

full respect for the interests of users, as regards choice, price, quality and returns,

(ii)

the prevention of any distortion and restriction of competition in the information and communications sector, with due allowance for ongoing transitional regimes,

(iii) encouragement of rational investment in the infrastructure, (iv) efficiency in the allocation and assignment of limited resources.

(3)

The Government shall take the necessary steps to guarantee the independence and transparency of policy and regulatory authorities through

(a)

clear, precise terms of reference for the authorities and decision making bodies in the sector as defined in this Act;

(b)

the creation of transparency mechanisms and the distribution of procedures for consultation with the sector players, giving interested parties an opportunity to bring forward their observations on proposed measures within a reasonable timeframe;

(c)

publication of annual reports of activities; and

(d)

the publication of all major decisions of Authority in the Gazette or in an official publication of the Authority or by any other relevant means.

(4)

The competent authorities responsible for

policy and for regulating issues in the field of information and communications determined in this Act are

(a)

the Minister competent for issues in the information and communications sectors, supported by the Ministry; and

(b)

the Authority.

Functions of the

7. (1) The Minister shall-

Minister

(a)

develop, in consultation with the Authority, review, and submit to Government, for approval information and communications policies consistent with the purposes of this Act;

(b)

prepare, in consultation with the Authority, and submit to Government, for approval, legislation in the information and communications sectors;

(c)

develop a universal service policy consultation with the Authority and submit it to the Government for approval;

(d)

be responsible for international representation of The Gambia and the Authority, as appropriate in matters of international information and communications and the information society, including international, regional and bilateral frequency coordination, and negotiate and sign bilateral and international agreements in the field of information and communications and information society on behalf of the Govern-ment of the Gambia; and

(e)

determine policy relating to the management of the country code top level domain name, in consultation with the Authority.

(2) Except otherwise provided in this Act, the Minister shall also,

Additional functions of the Secretary of State

(a)

issue licences under this Act pursuant to the recommendation of the Authority based on a clear and transparent application and evaluation process; and

(b)

allocate the frequency spectrum in consultation with the Frequency Allocation Advisory Committee.

(3) The Minister shall constitute a Frequency Allocation Advisory Committee, consisting of such members of the Ministry and the Authority and other members, as he or she may consider necessary, to advise him or her in the allocation of frequency spectrum.

8. The Minister shall also

(a)

prepare the general policy of the information and communications sectors in The Gambia in consultation with the Authority and other stakeholders in the sectors as provided for in this Act, including a national strategic plan for the sector in accordance with the policy which shall

(i)

encourage investment, on a competitive basis, in the information and communications sectors in The Gambia,

(ii)

create an atmosphere for the provision of services to users at just, reasonable and affordable prices, in accordance with the latest technological developments in the sectors; and

(iii) aim at strengthening the competitive position of The Gambia internationally in the areas of information and communications technology;

(b)

follow up the implementation of The Gambia’s commitments in international treaties in the information and communications and information technology sectors;

(c)

coordinate the representation of The Gambia with States, and regional and international organisations, unions, and commissions concerned with information and communications, and, in collaboration with the Authority, and other stakeholders, safeguard The Gambia’s interest before those bodies;

(d)

implement information and communications policies and plans in relation to the development of information and communications and in the interest of the creation and development of the information society, in particular by

(i)

encouraging the setting of advanced education and training programmes in information and communications, including the use of the Internet, electronic commerce, and electronic transactions

(ii)

promoting public awareness of the importance of the role of information and communications to the overall economic and social development and advancement of The Gambia, and

(iii) promoting the advancement of research and development in the areas of information and communications and information technology;

(e)

provide the necessary facilities to allow the Authority and designated members of the Armed Forces and security services to prepare

(i)

the National Plan for Frequency Assignment and the National Register of Frequencies, and

(ii)

procedures for the coordination among the members so as to ensure the optimal use of the radio frequencies and

Functions of the Authority

prevent harmful interference between frequencies assigned for civilian and military uses; and

(f) collect relevant information from the Authority and other Government Departments or private entities to enable the Ministry to accomplish its functions.

9. (1) The Authority shall regulate the information and communications sector based on the fundamental principles of this Act with the objectives of

(a)

ensuring the separation of regulatory and operational functions in the information and communications sector in The Gambia;

(b)

fostering transparency and non-discriminanation and protecting effective competition and a fair and efficient market between the organizations involved in the information and communications industry, duly taking into account the public interest and preventing distortion and restriction of competition in the information and communications sectors;

(c)

ensuring that there are provided in The Gambia, except where the provision is impracticable, such information and communications services as will satisfy all reasonable demands for them, including, in particular, emergency services, public pay telephone services, and directory information services;

(d)

without prejudice to the generality of paragraph (a), ensuring to the greatest extent possible that the information and communications services are available and affordable to the persons who need them;

(e)

promoting the interests of consumers, pur-chasers and other users in The Gambia, including, in particular, those who are

disabled or of pensionable age, with regard to prices charged for, and the quality and variety of, information and communications services provided and information and communications apparatus supplied;

(f)

promoting open network provision and effective competition among licensees in The Gambia;

(g)

promoting efficiency and economy on the part of licensees;

(h)

promoting research into and the development and use of new techniques and technologies by licensees;

(i)

encouraging major subscribers of information and communications services whose places of business are outside The Gambia to establish places of business in The Gambia;

(j)

promoting the provision of international transmission services through The Gambia;

(k)

encouraging persons producing information and communications apparatus to set up production facilities in The Gambia and compete effectively in the supply of the apparatus both inside and outside The Gambia. and

(l)

promoting processes of public consultation and manifestation of interest, with regard to the introduction of new services or technologies.

(2) Within the context of the objectives defined in subsection (1), the Authority shall

(a)

advise the Minister on policy formulation and development strategies for the information and communications sectors;

(b)

develop regulations for adoption by the

Minister in the information and communications sectors, after consultation of stakeholders in accordance with this Act;

(c)

adopt guidelines relating to the regime of activities for the different operators active in the information and communications sector, and ensure effective competition, with technology-neutral regulation wherever possible; and in particular regulate matters relating to information and communications services and networks, including

(i)

interconnection of networks, collocation of facilities, carrier preselection, access to networks, rights of way, the trans-mission or reception of satellite signals,

(ii)

the maintenance of and publication, and access to any information however so described,

(iii) universal service,

(v)

any matter concerning numbers including number portability, numbering plan and number allocation,

(vi)

the obligations of an undertaking having significant market power,

(vii) competition and consumer protection rules, billing procedures and billing accuracy,

(viii) emergency services and directory services;

(d)

process licence applications and prepare and carry out licensing procedures by competitive process, and make licensing recommendations based on such procedures to the Minister;

(e)

prepare and update, for approval by the Minister, the texts for the licensing terms and conditions that lay down the rights and obligations applicable to any licence;

(f)

process applications and grant authorizations for information and communications activities, requiring authorization and prepare the associated documents, including the terms and conditions for authorization;

(g)

issue permits for activities subject to a requirement for declaration;

(i)

monitor compliance with existing regulations and terms of licences, authorizations and permits granted in the information and communications sectors, and for that purpose, receive and study all information and documentation required from the operators of information and communication networks and services under the terms of their licences and terms of reference, and request any additional information that may be needed;

(j)

monitor economic and technical aspects of the information and communications sector in accordance with normal practice and inter-nationally recognized protocol, taking into account technology convergence in the information and communications sector as well as the development of new information and communication technologies and developing measures to stimulate and facilitate investment in the information and communications sectors;

(k)

determine quality of service and other performance and technical standards relating to the provision of information and communications services, and monitor

compliance with those standards and enforce them for those services and for the connection of user equipment to communication networks;

(l)

monitor and submit reports to the Minister on the sector, such as, the performance of the public operators, the quality of consumer services, and consumer satisfaction, measured according to existing international codes of practice;

(m)

deal with all questions relating to the protection of the interests of consumers, which include defining complaint processing procedures to be implemented by operators or service providers, managing a suitable sys-tem for receiving consumer complaints, the conduct of investigations concerning information and communications services, and sub-mission of those complaints;

(n)

enforce obligations of public information and communications operators and service providers to ensure that adequate, high-quality, affordable services meeting the various needs of the consumers are being delivered;

(o)

elaborate and, if necessary, revise the accounting requirements specific for the sector and tariff principles to be used by operators and service providers;

(p)

regulate tariffs chargeable for the provision of publicly available telephony services, or any other service provided in a market that is not competitive or in which competition is restricted;

(q)

regulate the protection and security of data;

(r)

regulate any matter relating to the administration, management and assignment of radio frequency spectrum, in conformity with domestic and international requirements

(h) issue	mandatory			specifications		and
approvals		for	terminal		equipment	and
verifying conformity;

pursuant to any relevant treaties, protocols or conventions to which The Gambia is signatory including

(i)

the preparation of the National Frequency Plan,

(ii)

the administration and assignment of radio frequency bands,

(iii) the transfer of rights to use radio frequency spectrum as well as the procedure to be followed, and

(iv)

the monitoring of usage conditions;

(s)

allocate numbering resources and manage the numbering plan;

(t)

implement the policy on domain name management, including regulating the registration, administration and management of domain names;

(v)

implement the universal service policy;

(u) examine,	monitor		and	enforce	the
implementation		of	interconnection		and
network access conditions;

(w)provide support to the Minister on international representation, and in particular

(i) cooperate with foreign regulatory authorities governing information and communications activities’ and participate, within the scope of its competence, in the work of international organisations and regional institutions, committees and groups the activities of which are related to information and communications, radio equipment and terminal equipment, electro-magnetic compatibility and radio spectrum management appointing,

Licensing of information and communications services, sys-tems and apparatus

where appropriate, experts to participate in relevant committees and groups, and

(ii)

pursue international coordination of radio frequencies (channels) and international protection of radio stations (radio frequencies);

(x)

determine a code of practice for Gambian licensees in their dealing with international and correspondent licensees and regulate international accounting rates and practices only as required to avoid anti-competitive practices but not so as to inhibit the advancement of technology and the growth of competition;

(y)

regulate the procedure for the resolution of disputes between information and communications network operators or service providers and the relationship between the Authority and other public authorities responsible for the resolution of disputes; and

(z)

perform any other functions assigned to it under this Act.

PART VI – REGULATIONS OF TARIFFS AND QUALITY OF SERVICE

Tariff regulation

81. (1) Notwithstanding the provisions of the Regulatory Authority Act or any other law, tariffs in the information and communications sector which

(a)

are, in the opinion of the Authority, subject to effective competition, shall be established by the operation of the market;

(b)

in the opinion of the Authority, lack effective competition, shall be subject to such proportionate controls and non-discriminatory controls set out in the guidelines provided by the Authority, taking into account the mechanisms specified in section 82.

(2) Where guidelines have been provided pursuant to this section, any rate mechanism in force at the time of the publication of the guidelines shall cease to have effect, without prejudice to its validity in respect of any preceding period, with regard to the market or markets segments to which the guidelines refer.

Price caps

82. (1) Unless and until guidelines are provided pursuant to section 81, the general structure of the tariff regulation mechanism shall be price cap, in accordance with the following provision

(a)

all authorized providers under this Act who

provide Information and communications services and systems to the public shall file with the Authority schedules of their tariffs, including those of their agents and correspondents;

(b)

all authorization providers whose tariffs are subject to regulation by the Authority shall be subject to a price cap mechanism and shall file with the Authority all the necessary documents as required in their licences;

(c)

all proposed tariffs or changes to the existing tariffs, including the terms and conditions applicable to them, but excluding special offers and other promotions, shall be filed with the Authority within thirty days before being implemented by an authorized provider;

(d)

if the Authority takes no action before the expiration of thirty days from the date on which the proposed tariffs are filed, the authorized provider may implement the proposed tariffs, provided that a proposed tariff shall not be implemented where a complaint, as to the appropriateness of the proposed tariff, has been filed with the Authority and has not been determined;

(e)

authorized providers subject to tariff regulation by the Authority shall ensure that all filed tariffs are printed and kept open for public review and inspection and furnish them to customers on request;

(f)

authorized providers whose tariffs are subject to regulation by the Authority pursuant to the price cap mechanism who wish to change the tariff, shall file with the Authority an application that they intend to adjust the tariff.

(2) In this section, “price cap” means a methodology where the price charged for an

Quality of service

Obligations of authorized operators

information and communications service or system is allowed to change by the rate of inflation over the initial price with an adjustment factor (X), based on factors, such as

(a)

technological changes;

(b)

the need to finance development infrastructure; and

(c)

need to adopt efficient working systems,

provided that the overall rate of the basket of services in which the rate is included, does not exceed a limit set by the operation of a price cap formula.

83. In the context of the responsibilities of the Authority under this Act, the Authority shall undertake the following as it finds appropriate

(a)

measure some or all quality of service indicators;

(b)

audit the quality of service reports submitted by licensees;

(c)

apply the appropriate sanctions when failure to meet targets or to provide adequate information occurs; and

(d)

publish quality of service indicators as it deems appropriate.

84. (1) Notwithstanding the provisions of section 83, authorized operators shall undertake the following

(a)

establish and administer measurement systems consistent with the quality of service framework;

(b)

establish the measures needed to comply with measurement systems;

(c)

provide bi-annual reports with respect to

the quality of service indicators, measurement results.

(2)

Authorized operators shall submit bi-annual reports to the Authority that contain, at a minimum, the quality of service indicators information as required by the Authority.

(3)

The bi-annual reports shall

(a)

contain the processed information based on statistics or empirical information that the authorized operator collects from its own measurement systems and the empirical data as explained in the quality of service indicators using formulas and calculation methods in accordance with those specified in quality of service indicators guidelines; and

(b)

include statistics regarding performance indicators on a monthly, quarterly, and biannual basis, for the six month reporting period.

(4)

If an authorized operator fails to provide the necessary quality of service reports, the Authority has the right, after written notification, to make arrangements for a third party to carry out independent measurements at the expense of the authorized operator.

(5)

The Authority may conduct an audit immediately following the submission of the first quality of service report by the authorized operator under the quality of service framework in order to verify that the authorized operator is submitting accurate and timely information.

(6)

The Authority reserves the right to conduct audits of operator’s network, as it deems necessary.

PART VII -ALLOCATION AND ASSIGNMENT OF FREQUENCIES AND REGULATION OF THE ELECTROMAGNETIC SPECTRUM

Interpretation of this part

Allocation and assignment of spectrum

National spectrum allocation plan

85. In this Part

“Plan” means the National Spectrum Allocation Plan prepared under this Part; and

“Spectrum Regulations” means the Spectrum Regulations made under this Part.

86. (1) The Minister shall allocate the frequency bands of electromagnetic spectrum in The Gambia.

(2)

The Authority has jurisdiction over the assignment and usage of the frequency bands of electromagnetic spectrum in The Gambia and shall assign spectrum and regulate the usage of frequency bands of electromagnetic spectrum in The Gambia.

(3)

The Authority may delegate, to any competent person or body, any technical aspect of its jurisdiction over frequency regulation.

87. (1) The Authority shall, with the approval of the Minister, within one year of the commencement of this Act, prepare a National Spectrum Allocation Plan and make the Spectrum Regulations designed to implement the Plan.

(2)

The Authority shall, in developing the National Spectrum Allocation Plan, work and liaise with the different users of spectrum in The Gambia, including the Armed Forces, law enforcement and security agencies, maritime and civil aviation authorities.

(3)

The Plan shall be

(a)

based on, and include, the material provisions of the Frequency Assignment Plan prepared for The Gambia by the Union; and

(b)

consistent with the objectives of this Act.

(4)

The Spectrum Regulations shall contain guidelines for the allocation of frequencies.

Categories of frequency bands

Application procedures

88. The Plan and Spectrum Regulations shall organize frequency bands in The Gambia into the following five categories

(a)

the Free Use Spectrum, which includes those frequency bands which may be used by the public in general without any licence, permit or registration;

(b)

the Commercial Use Spectrum, consisting of those frequency bands assigned by means of a licence granted by the Minister, which may be used for information and communications services and information and communications systems authorized by the issued licence;

(c)

the Official Use Spectrum, consisting of those frequency bands reserved for the exclusive and official use of the Central and Local Governments of The Gambia and the Armed Forces;

(d)

the Experimental Use Spectrum, which includes those frequency bands which may be assigned directly by the Minister, through a non-transferable licence to test the technical and economic feasibility for a limited period of time, of technologies still not developed either in The Gambia or abroad, for scientific purposes or for temporary tests of equipment; and

(e)

the Reserved Spectrum, which includes those frequency bands which the Minister has held for future possible allocation.

89. (1) An authorized person or an applicant to establish an information and communications system or provide information and communications services shall apply to the Authority for the licence to use frequencies related to the system or service in the categories set out in section 88.

(2) The Authority may, on receipt of an application, and on completion of the process set out in the Spectrum Regulations, assign to the applicant, the frequency or frequencies applied for if

(a)

it does not cause interference or harm to persons or existing operators or authorizations;

(b)

there are no compelling reasons founded on technical data, national security, public safety or other reasonable justification for refusing the application, which shall be communicated to the applicant; and

(c)

the granting of the application is consistent with this Act, the Plan and the Spectrum Regulations.

(3)

In addition to the other requirements of the Plan and the Spectrum Regulations, the Authority shall, when assigning frequencies

(a)

take into account the availability of frequencies, the distribution of service points of the information and communications service or system with regard to urban, rural, residential and commercial, or other categories of uses and the technical characteristics of the equipment involved and its capability to interconnect with other information and communications apparatus and systems,

(b)

ensure that the radio frequency spectrum is utilized and managed in an orderly, efficient and effective manner;

(c)

aim at reducing congestion in the use of the radio frequency spectrum;

(d)

aim at protecting radio frequency spectrum licensees from harmful interference;

(e)

provide for flexibility and the rapid and efficient introduction of new technologies; and

(f)

aim at providing opportunities for the introduction of the widest range of services and the maximum number of users of those services as is practically feasible.

(4)

Without prejudice to subsection (3), the Authority shall, in assigning, managing and monitoring frequencies

(a)

classify radio stations;

(b)

determine the location of classes of stations or individual stations and approve their call signs;

(c)

assign bands of frequencies to various classes of stations, assign frequencies for each individual station and determine the power which each station shall use and the time during which it may operate;

(d)

modify frequencies;

(e)

establish areas or zones to be served by any station as appropriate, having regard to the efficient allocation of frequencies;

(f)

prescribe and publish such regulations applicable to radio stations engaged in chain broadcasting as may be conducive to the efficient assignment of frequencies;

(g)

designate standards of equipment to be used with respect to the external sharpness of the emissions from each radio station and from the equipment in it; and

(h)

ensure avoidance of harmful emission, interference or illegal broadcasting;

(5)

Nothing contained in this Act permits the modification, suspension or cancellation of a frequency assigned by the Authority to an operator because of views or opinions expressed through

Environmental impact statement

No. 13 of 1994

Migration of users

Harmful interference

Restrictions

the medium of the information and communications service or system of the operator unless the view or opinion is

(a)

stated as that of the operator; and

(b)

a breach of the conditions of its assignment or allocation or other law of The Gambia.

1. An application for the allocation or assignment of frequencies shall contain, among other terms specified in the Spectrum Guidelines, an environmental impact assessment issued in accordance with the National Environment Management Act, 1994 which demonstrates technically and scientifically that the assignment of the frequencies for the purpose requested will not have a negative impact on the environment in The Gambia.
2. The Authority may, where the Plan identifies radio frequency spectrum that is occupied and requires the migration of the users of the radio frequency spectrum to other radio frequency bands, migrate the users to the other radio frequency bands in accordance with the Plan.
3. (1) If there is harmful interference between or among operators or between operators and other technical systems using frequencies, the Authority may take immediate action, including the giving of directives, to remedy the problem.

(2)

A licensee affected by an action taken by the Authority shall be given not less than twenty-one days opportunity to state its views and to propose remedies to the harmful interference.

(3)

The Spectrum Guidelines shall set out the procedure to be followed and the decision to be taken by the Authority under this section.

93. The Authority may impose restrictions on the use of frequencies which it assigns as are reasonably required in the public interest.

Radio monitoring

Co-ordination of frequency usage

Right to enter building, etc.

1. The Authority shall control compliance with the requirements of the legal acts regulating radio communication and shall carry out radio monitoring.
1. (1) Licensees requiring spectrum must, in good faith, co-ordinate their respective frequency usage with other licensees to
1. avoid harmful interference among licensees;
2. ensure efficient use of any applicable frequency band; and
3. allow for the provision of cost-efficient services.

(2)

Where licensees are unable or unwilling to coordinate in good faith in terms of subsection (l), the Authority shall intervene and resolve the dispute.

(3)

The Authority shall prescribe guidelines on the co-ordination contemplated in subsection (I), which may include a process for the resolution of disputes among licensees on an expedited basis.

96. (1) The Authority may, subject to this Act, the related legislation and other applicable law, enter into any building, place, ship or aircraft for purposes of subsection (2).

(2) Where a person is found in possession of any radio apparatus in contravention of the provisions of this section, the Authority may

(a)

seal or alter the apparatus or any part of it in order to prevent the use of that radio apparatus for the purpose of transmission or reception;

(b)

grant a permit for a limited or indefinite period authorising the possession of that apparatus on condition that it is not, during that period, used for the purpose considered to be an infringement; or

Responsibility

National Numbering Plan

Management of the National Numbering Plan

Rules on numbering

Publication of the national numbering plan

(c) seize the apparatus, whether or not it is sealed as contemplated in paragraph (a), for disposal.

(3) Any Radio apparatus seized under subsection (2)(c) shall be held by the Authority at the cost of the person from whom it was seized until its possession is authorized in terms of this Act, or the matter is dealt with by a court of law.

PART VIII – MANAGEMENT OF NUMBERS

1. The Authority has overall responsibility to plan and carry out the administrative duties related to numbering resources.
2. (1) The Authority shall establish and manage the National Numbering Plan for electronic communication services.

(2)

The Authority shall control the assignment of all national numbering resources and ensure that adequate numbers and numbering ranges are provided for all publicly available information and communications services.

(3)

The National Numbering Plan shall cover numbers, short numbers, identifiers, codes, prefixes and special numbers, such as, emergency numbers.

1. The Authority shall, as necessary, subject to ensuring the proper management of the National Numbering Plan, grant rights of use for numbers and number ranges for all publicly available information and communications services according to procedures that are objective, transparent and non-discriminatory.
2. The Authority may issue further rules on numbering which shall specify the type of numbers, identifiers and codes that may be used in information and communications and the purpose for which they are to be used.
3. The Authority shall publish, subject only to limitations imposed on the grounds of national

Conditions for the use of numbers

Revocation of the right to use numbers

security, the national numbering plan, all subsequent additions or amendments to it.

102. (1) The Authority may, without prejudice to the generality of any provisions by or under this Act relating to licences, attach conditions to rights of use for numbering resources, including the payment of fees to ensure efficient and effective management of all numbering resources.

(2) Conditions that may be attached under subsection (1) shall be defined in regulations made by the Authority.

103. (1) The Authority may revoke the right to use a numbering resource if

(a)

the holder of the right to use the numbering resource does not pay the fee the grant of use for the numbering right or the yearly extension;

(b)

the use of the numbering resource is against the grant of numbering right;

(c)

the numbering resource is not taken into use within a reasonable time after the grant of the numbering right or its use has been discontinued; or

(d)

the holder of the right to use the numbering resource does not rectify his or her conduct within one month in spite of being requested to do so.

(2) Before the Authority revokes the right to use a numbering resource, it shall give the holder of the right to use the numbering resource prior written notice of at least thirty working days and the holder of the right to use the numbering resource shall have seven days in which to respond in writing to the notice unless otherwise extended by the Authority demonstrating that it is utilising the numbering resource in compliance with this Act and the conditions.

Access to emergency numbers

Information of the use of numbers

Use of databases

Electronic addressing

(3) The Authority, based on the written response required under subsection (2), shall notify the holder of the right to use the numbering resource of its decision to revoke or not to revoke the right to use the numbering resource.

104. (1) An information and communications operator in a public communications network shall ensure that users are able to access the emergency call numbers free of charge.

(2) The Authority may issue further orders on technical measures necessary to meet the obligation referred to in subsection (1).

105. (1) Information and communications providers shall continuously report to the Authority, and to those service providers subject to the obligation of directory services, all data of subscribers, including information regarding the use of numbers, names and addresses of associated end-users, depending on their approval as are required by the Authority or necessary in connection with providing the directory services.

(2) The Authority may make regulations on requirements for the provider’s duties and end-users’ rights in regard to directory enquiry services.

106. (1) The Authority may issue directives regarding the use of databases that are utilised in connection with information and communications and contain information on or are connected to numbers, names or addresses.

(2) The Authority may

(a)

nominate an organisation for administration of the databases; and

(b)

issue regulations on the use of databases and on the nomination.

107. (1) The Authority may, from time to time, make rules and give directions in relation to electronic addressing of electronic communications services and related services, including the allocation and use of electronic addresses.

(2) The Authority may develop, administer and enforce a plan for electronic addressing.

PART IX – TYPE-APPROVAL OF TERMINAL EQUIPMENT

Principles

108. (1) The Authority shall prepare Technical Guidelines of Radio Equipment and Communications Terminal Equipment in which it shall lay down

(a)

the conditions and basic requirements for the connection of radio equipment and information and communications terminal equipment;

(b)

the obligations related to the provision of information on interface specifications and to the connection of radio equipment and communications terminal equipment;

(c)

the procedure and conditions for the placing on the market, selling and use of the equipment;

(d)

the requirements for radio equipment and communications terminal equipment;

(e)

the procedure and conditions of conformity assessment, approval and monitoring; and

(f)

other related requirements.

(2)

The Authority shall prepare Technical Guidelines on Electromagnetic Compatibility in which it shall lay down

(a)

the conditions for applying electromagnetic compatibility requirements, the procedure and conditions for the placing on the market and use of equipment and devices;

(b)

the requirements for equipment and devices, their installation and use;

(c)

the procedure and conditions of assessment, approval and monitoring of compliance with electromagnetic compatibility; and

(d)

the payment of type approval fees.

(3)

The Authority shall prepare the rules for the use of industrial, medical and scientific equipment and devices, that is, equipment and devices the operation of which generates and consumes radio wave energy and which are intended for industrial, medical, scientific, domestic and similar purposes, except for purpose of electronic communications.

(4)

The owner or user of radio equipment and devices shall allow officials from the Authority to inspect equipment and devices, also to confiscate them if necessary.

Type approval

109. (1) The Authority may grant type-approval for certain types of recurring equipment or apparatus on a one-time basis, and subsequent users of the same model of equipment or apparatus shall not apply to the Authority for type approval.

(2)

Notwithstanding the provisions of subsection (1), radio and terminal equipment covered by international agreements to which The Gambia is a party and that meet requirements in accordance with those agreements, may be held, sold and used.

(3)

The requirements referred to in subsection (2), include the safety of life and health, electromagnetic compatibility, effective use of the electromagnetic frequency spectrum, procedures and labelling and other requirements in regulations made pursuant to section 108.

(4)

Possession, sale and use of radio and terminal equipment that is not covered by agreement in accordance with subsection (2), require equipment approval from the Authority.

(5)

The Authority may

Non-discrimination in service provision

Licensees to offer uniform services

(a)

deny approval if the equipment does not fulfil the requirements as stated in section 108;

(b)

impose conditions for equipment approval; or

(c)

make exceptions to the requirement for approval.

(6)

Notwithstanding the provisions of subsections

(1)

to (5), a subsequent change in model, design or specification of an equipment or apparatus, which has been type-approved by the Authority, shall be submitted for type approval.

(7)

The Authority shall ensure that the connection of an apparatus to an information and communications system does not damage or jeopardize the integrity of the information and communications system.

PART X – UNIVERSAL ACCESS AND SERVICE

110. (1) Except as provided by or under this Act, an authorized provider shall not deny a subscriber or any other user of an information and communications service it provides, or have the service discontinued.

(2)

An authorized provider may deny a service for a reason allowed by regulations made under this Act or contained in the terms and conditions of information and communications service submitted to and approved by the Authority.

(3)

The right of an authorized provider to discontinue a service shall in all cases be exercised in a proportionate manner.

111. (1) Licensees shall provide uniform, non-preferential information and communications services or systems on a first-come, first-served basis to all persons within a covered geographic area who request the service or system.

(2) A licensee is not in breach of the principle of equal access and non-preferential treatment if the licensee

(a)

considers the ability of a person to pay for an information and communications service or system when deciding whether to provide it to the person; or

(b)

makes other rational classifications among subscribers, such as, business and residential, high or low volume, and provides the information and communications service or system on the basis of those classifications and all persons within a given classification are served on a non-preferential basis.

Universal

112. (1)The Authority shall-

service obligation

(a)

determine the most effective and appropriate approach for ensuring the implementation of universal access or service, with due respect for the principles of objectivity, transparency, non-discrimination and proportionality; and

(b)

shall endeavour to keep market distortions to a minimum, particularly where they take the form of service provision at rates or under conditions which differ from those normally prevailing in a commercial operation, while protecting the public interest.

(2) The universal access obligation may be fulfilled by

(a)

contribution to the provision of universal service;

(b)

the provision of information and communications systems or services at lower than tariff or normal rates; or

Cooperation in the management of universal access or service

Designation of universal access or service providers

(c) any other form which the Authority designates.

(3) Where the Authority establishes, by directive, regulation or otherwise, a form of contribution to the goal of universal access, all the operators shall, unless specifically exempted by the Authority pursuant to detailed regulations, contribute uniformly in accordance with the formula or manner established by Authority for that purpose.

113. Cooperation in the management of universal access or service shall be explored on several levels

(a)

between the private sector and communities, so that where possible, the market can deliver universal access or service;

(b)

between communities, Government and the private sector, to ensure that the access gap is dealt within a manner that is relevant to communities; and

(d)

within Government, to realize full benefits of information and communications beyond infrastructure and technology, and extended to health, education, agriculture and other sectors.

114. (1) The Authority may designate one or more licensees as universal service provider.

(2)

The process for designating universal service providers shall be efficient, objective, transparent and non-discriminatory, ensuring that no undertaking is excluded a priori from being designated, and may include tenders.

(3)

The terms of a tender, if applicable, shall ensure that the universal service is provided in a cost-effective manner and sets out provisions for the maintenance of obligations, in the event of mergers or assignment of the provider’s contractual position.

Reviewing the scope of universal access and service

(4) Operators designated by the Authority, shall comply with

(a)

the terms of the universal access programme; and

(b)

such reporting requirements,

as the Authority shall establish for that purpose.

115. (1) With a view to monitoring and reviewing policies, the Authority shall

(a)

adopt measurable targets for improving connectivity and access to information and communications which can be based on distance, population density or length of time needed to have access to information and communications; and,

(b)

hold periodic reviews of universal access and service policies, regulations and practices in order to adapt to the evolving nature of information and communications services and end-user needs.

(2)

The Authority shall periodically review the scope of the universal service, in particular with a view to making proposals for its modification or redefinition.

(3)

The first review shall be held not later than two years following the date of entry into force of this Act, and thereafter a review shall be held every three years.

(4)

The review shall take account of social, economic and technological developments, and particular regard to data mobility and transfer rates for the technologies most widely used by the majority of subscribers.

116. (1) Funding and subsidies shall be targeted, determined and delivered in a manner that is

Funding of universal service Universal service fund

transparent, non-discriminatory, inexpensive and competitively neutral.

(2) Subsidies can be provided using several means, including

(a)

a universal service fund, which should be developed as a mechanism within a broader market-oriented approach to achieving universal access and which can be financed by a broad range of market players, managed by a neutral body, and be used to kick-start public access projects that meet the needs of the local community;

(b)

a full range of other financing mechanisms;

(c)

competitive minimum subsidy auctions which may be used, as an option, to reduce the amount of financing necessary for public access projects financed by a universal service fund; and

(d)

public access projects, which can be designed to achieve long-term financial self sustainability, especially where consideration is given to innovative low-cost technologies.

117. (1) The Minister may establish a Fund to finance projects to provide telephone, internet and associated services to areas which, for some reasons, are not attractive to private sector investors.

(2)

If established, the sources of the Fund shall consist of

(a)

such levies from information and communications systems and services operators as the Authority may from time to time, specify;

(b)

grants, donations and endowments that may be received within and outside The Gambia;

(c)

subventions from Government; and

(d)

such other monies as may, from time to time, accrue to the Fund.

(3)

The Fund shall be kept in a bank approved by the Board of Trustees.

(4)

Where a Fund is established, the Board of Trustees and the Secretariat as defined in sections 118 to 120 shall supervise and provide policy direction for the management of the Fund and the Fund Manager.

Fund board

118. (1) Where a Fund is established, a Board of Trustees referred to as “the Fund Board” shall be established which shall manage and control the Fund, and comprise

(a)

the Permanent Secretary of the Ministry;

(b)

a representative from the National Planning Commission;

(c)

the Director General of the Authority;

(d)

one member of the Board of the Authority;

(e)

a representative of consumers;

(f)

a representative of service providers; and

(g)

two other private sector representatives to be appointed by the Minister, on the recommendation of the Authority.

(2)

A Chairperson shall be appointed by the Minister from amongst the members, in consultation with the Authority.

(3)

The Fund Board shall have the ability to establish standing or Ad Hoc Committees to assist it in exercising its functions under this Act, but decisions of the Fund Board Committees shall not, be binding and valid until they are adopted and agreed on by the Fund Board.

(4)

Membership of the Fund Board Committees may be constituted beyond the members of the Fund Board to include persons and representatives of organizations that are capable in the Board’s Fund estimation, of assisting the Authority and the Board in the discharge of the universal service functions, provided that Fund Board Committees shall at all times be headed by Board members.

(5)

The functions of the Fund Board shall be defined in regulations to be made by the Minister and shall include

(a)

supervising and providing broad policy directions for the management of the Fund and the Fund Managers;

(b)

appointing and removing Fund Managers, in consultation with the Authority;

(c)

approving Operating Plans, which shall include one or more Programs and projects and a budget for all operations and expenses of the Fund Board, Secretariat, Fund Managers and all other matters to be financed by the Fund during the period of the Operating Plan;

(d)

establishing guidelines and regulating the activities of the Fund Manager;

(e)

approving all processes, procedures, guidelines, and decisions to give full force and effect to the regulations; and

(f)

performing all other functions assigned to it.

(6)

The accounts of the Fund shall be audited by the Auditor General.

Fund secretariat

119. (1) Where a Fund is established, a Fund Secretariat, shall be established.

(2)

The Fund Secretariat resides in the Authority and shall be responsible for the day-to-day management of the Universal Service Fund.

(3)

The Authority

(a)

shall ensure that the Fund Secretariat is staffed with suitably qualified and experienced personnel, who may be seconded from the Authority’s staff;

(b)

may also recruit suitably qualified personnel from outside the Authority as required to meet the staffing requirements of the Fund Secretariat.

(4)

The functions of the Fund Secretariat shall be defined in regulations to be made by the Minister and shall include

(a)

receiving applications for loans and grants from eligible persons such as, community-based information and communications operators;

(b)

reviewing those applications and making recommendations to the Fund Board as to which applications should be funded;

(c)

liaising with other Directorates in the Authority in processing licences for funded applications;

(d)

providing loan recipients and grantees with technical and managerial assistance, such as, resolution of equipment vendor issues and setting up billing systems;

(e)

evaluating project performance and effecting such actions as may be necessary to ensure that loan recipients and grantees meet objectives for network expansion and provision of service;

(f)

enforcing standards of quality of service in rural and underserved areas set by the Fund Board;

(g)

collecting project assessments and loan repayments and paying the loan repayments into the Fund;

(h)

evaluating the effectiveness of the Fund in meeting policy goals as set by the Government and the Board;

(i)

facilitating collaboration between activities that are funded by the Fund and other infrastructure and development efforts; and,

(j)

liaising between the Fund Board and the Fund Manager;

(k)

preparing and recommending to the Board Fund the Operating Plans;

(l)

preparing and recommending to the Authority and to the Board the guidelines to establish and regulate the structure and activities of the Fund Secretariat and the Fund Manager, and revisions to such guidelines from time to time;

(m)

coordinating with the Authority in order to carry out its functions;

(n)

preparing and recommending to the Board all processes, procedures, guidelines and decisions necessary to give full force and effect to the regulations; and,

(o)

performing all other functions assigned to it.

Fund manager

120. (1) The Fund Secretariat shall carry out a public, transparent and competitive selection process in consultation with the Authority to select a Fund Manager and shall submit its recommendation to the Board.

(2)

The Board shall appoint the Fund Manager on the basis of the recommendation of the Secretariat.

(3)

The Fund Manager shall advise and assist the Secretariat to

(a)

maintain the Fund’s financial accounts and records;

(b)

collaborate with the Secretariat in the collection of the project assessments and loan repayments;

(c)

estimate the amount needed annually to sustain the rate of network expansion determined by the Authority as appropriate to meet Universal Service Policy objectives;

(d)

determine the amount of annual revenue required to ensure that the Fund remains fiscally sound, and to calculate the corresponding rate of assessment;

(e)

disburse funds to eligible entities based upon approval by the Fund Board;

(f)

invest Fund cash reserves under directions from the Board and to establish cash management procedures to ensure maximum return on investments while meeting short-term cash requirements for disbursements;

(g)

regularly report on financial performance of the Fund to the Fund Board; and,

(h)

evaluate the effectiveness of the Fund in meeting policy goals as set by Government and the Fund Board.

(4)

The Fund Manager shall report on a quarterly basis to the Fund Board and the Secretariat on the status of the Fund including a report detailing the financial situation and performance of the Fund.

PART XI -PROVISIONS CONCERNING THE INTERESTS AND RIGHTS OF END USERS

Principles

121. (1) The provisions of this Part shall not be derogated from to the detriment of the consumer.

(2) Where users are not consumers, the provisions shall only apply to the relevant parts of any agreement and only if the contrary has not been agreed.

Right to deposit or security

(3)

Except as provided by this Act, a subscriber or other user of an information and communications system or service shall not be denied a service provided by an authorized provider, or have the service discontinued without reasonable notice, taking into account the circumstances of each case.

(4)

An operator shall

(a)

make available all information and communications systems and services as may reasonably be provided to any person wishing to subscribe to the systems or services;

(b)

ensure that all rates, charges, practices and classifications are just and reasonable;

(c)

provide efficient services and comply with the standards for quality generally accepted in the information and communications industry.

(d)

notify the Authority and publish by notice in the media when the services are to be inter

irupted for the installation, repair or changing of equipment;

(e)

establish an efficient mechanism for receving complaints and repairing failures in the information and communications systems or services;

(f)

comply with the provisions of this Act, regulations made under this Act and the terms and conditions of the licence; and

(g)

abide by any directives of the Authority which it is authorized to issue.

122. (1) An information and communications service operator has the right to require from a consumer a reasonable deposit or security for the payments under the network subscriber connection agreement, but only for special reasons, including

Calling line identification

Standard contracts

Provisions regarding contracts

those relating to foreseeable insolvency or some other comparable circumstance.

(2)

If the special reasons referred to in subsection

(1)

apply, the information and communications service operator has the right to impose a reasonable balance limit, as well as a deposit or security, as a condition of a subscriber connection agreement.

1. An information and communications service provider in a public communication network has an obligation to provide a user with tone dialling and a service with which the call recipient can see the calling number before answering the call.
2. (1) An information and communications service provider in a public communications network shall, with the approval of the Authority, draw up standard contract terms for subscriber connections and shall use the standard terms when making agreements with consumers.

(2) An information and communications service provider in a public communications network shall publish standard contract terms and tariff information on services and shall ensure that they are easily available to users without charge.

125. (1) Contracts for public communications network subscriber connections and contracts for receiving any other communications service shall be made in writing, and may also be made electronically, provided that the content of the electronic contract cannot be amended without the consent of the other party and that the contract remains available to both parties.

(2)

The contract shall be sent to the user for signature within five working days from an order of a service and the user has the right to cancel an order within twenty working days.

(3)

If the signed contract has not been returned to the information and communications service provider within twenty working days, the user is

deemed to have cancelled the order and the information and communications service provider cannot claim any charges from that period.

(4)

The contract shall state the name and contact information of the provider of the information and communications service, including but not limited to the following

(a)

the validity of the contract;

(b)

the nature of the services and the types of maintenance service provided;

(c)

the time of delivery of the subscriber connection;

(d)

the pricing basis for the services or the tariffs to be applied;

(e)

the procedure for giving notice to terminate the contract and the reasons for termination;

(f)

the sanctions for any error or delay;

(g)

the user’s right to obtain information on the calculation of his or her bill;

(h)

how the user is informed of amendments to the contract terms;

(i)

the user’s rights if the contract terms are amended;

(j)

the sanctions for neglect of payment;

(k)

the user’s right to complain about a bill;

(l)

the right of the information and communications service provider to terminate the provision of a service or to restrict the use of a service; and

(m)

the right of the consumer to refer a dispute on the contract for the decision of the

Amendments to terms of subscriber contracts

Authority.

(5)

The standard conditions established for the provision of information and communications ser-vices to the public shall be published by the information and communications service provider on its website or in any other reasonable manner and be given to the user together with the contract to be signed.

(6)

The terms of a contract for a public communications network subscriber connection and any other contract for receiving an information and communications service shall not restrict the user’s right to

(a)

choose a content service provider;

(b)

connect to the network any functioning radio or information and communications terminal equipment that is type approved for the purpose; or

(c)

connect to a public communications network any communications network that is internal to a property or building, which meets the requirements of this Act.

126. (1) A provider of an information and communications service may amend the price and other terms of a contract for a subscriber connection only

(a)

on grounds specified in the contract terms, assuming that the content of the contract does not essentially change as a whole;

(b)

on the basis of a change in legislation or a consequent decision by the authorities; or

(c)

for any other special reason due to an important change in circumstances.

(2) The user has the right to give notice of termi

Dispute resolution

Temporary closure of connections

nation, with immediate effect, of contract on a public communications network subscriber connection or any other contract on receiving an information and communications service if the information and communications operator gives notification that it is amending the agreement terms.

(3) An information and communications service operator shall notify the user of any change in the contract terms and the content no later than one month before the amended terms enter into force.

127. (1) Information and communications service operators shall establish and manage a dispute resolution system, that is free of charge for the users.

(2)

Complaints shall be dealt with within a reasonable timeframe and decisions shall be made in an objective and transparent way.

(3)

Where disputes relate to billing, the operator shall not disrupt the service provision to the user if the user pays the non-disputed part of the payment of the bill.

(4)

Where a dispute is not resolved to the satisfaction of the user or operator, it shall be referred to the Authority.

128. (1) An information and communications service operator may close or restrict the use of a network subscriber connection temporarily without the consent of the user if this is necessary for network construction or maintenance work.

(2)

An interruption shall be made in a way that causes as little inconvenience to the user as possible and shall be announced well in advance wherever possible.

(3)

If a subscriber connection is closed for more than forty-eight hours in a calendar month for reasons of network construction or maintenance work or a fault in the information and

Removing restrictions or re-opening of connections

Right to close connections

communications network, the provider of the information and communications network services shall refund to the user, the monthly rental for one month or pay an equivalent reasonable refund.

(4)

The refund obligation referred to in subsection

(3)

does not, however, apply if the fault is caused by

(a)

a natural phenomenon or other force majeure, and if the provider of information and communications network services demonstrates that, using reasonable measures, it has not been able to repair the fault within forty-eight hours;

(b)

neglect on the part of the user or another person that has used the subscriber connection; or

(c)

the poor operating condition of terminal equipment or the wiring in the premises.

129. (1) On the request of the user, the provider of information and communications services shall reopen a closed subscriber connection or remove a restriction on use as soon as the restriction on the use or closure of the subscriber connection is no longer justified.

(2) A provider of an information and communications service has the right to charge a reasonable fee for reopening a subscriber connection or removing a restriction on use.

130. (1) An information and communications service operator has the right to close the connection if the user has not paid a due bill in spite of a reminder that has been sent no sooner than fourteen days after the bill was due and fourteen days after sending the reminder.

(2) On the request of the user, the provider of an information and communications service shall, without compensation, bar the use of a subscriber

Termination of contracts

connection if the barring is technically easy to implement, but if the barring is later removed on the request of the user, the information and communications operator may charge a fee for doing so.

(3)

An information and communications operator with a public communications network subscriber connection used by another information and communications operator to provide a communications service or which collects fees on behalf of another information and communications operator shall bar the use of the other information and communications operator’s service, on request, if the information and communications operator requesting the barring is not itself able to bar the use of its communications service.

(4)

The Authority may issue further orders on the minimum call-barring categories for outgoing traffic from the subscriber connection that shall be provided to the user, and on the technical implementation of call-barring services.

131. (1) A provider of an information and communications service has the right to terminate a contract on a network subscriber connection if

(a)

the subscriber connection has been closed for at least for thirty days and the reasons for closure still apply; or

(b)

the user has been convicted for disrupting communications using a subscriber connection.

(2)

A provider of an information and communications service may only terminate a network subscriber connection contract in writing after the information and communications operator has warned the user in advance of the termination of the subscriber connection contract.

(3)

The user may give notice of termination of a subscriber connection contract orally and may also

Itemized billing

Numbering changes

give notice of termination of a subscriber connection contract that is valid until further notice to terminate fourteen days from the notice.

(4) The information and communications operator shall send the user a written confirmation of the termination.

132. (1) Information and communications service providers shall, without charge, provide itemised bills for the use of the public communications network subscriber connections without being separately requested to do so.

(2)

The bill shall, without difficulty, indicate at least the following billing items

(a)

network charges;

(b)

different categories of calls, including national, mobile and international calls;

( c) subscriber connection rates;

(d)

text messages, picture messages and other messages;

(e)

data transfer services.

(3)

Irrespective of the amount of the bill, the provider of information and communications service shall itemize the fees for services other than telephony services without being requested to do so and without charge.

(4)

Calls to free phone numbers shall not be indicated on an itemized bill.

(5)

Users have the right to obtain a non-itemized bill on request.

133. Providers of information and communications services shall in an efficient manner and in good time provide users with information on changes in numbering affecting the public communications

Complaints of unfair competition

network.

(2) Users shall be given information on any changes to their telephone numbers not less than six months before the change enters into force.

PART XII -DISPUTE RESOLUTION

134. (1) Where the Authority receives a complaint or it appears to the Authority that a breach of fair competition, or equal access, has been committed, the Authority may investigate the act or omission and give written notice to the licensee

(a)

informing the licensee that the Authority is investigating a possible breach of fair competition or equal access;

(b)

stating the reasons for the suspicion of a breach, including any facts or law which are relevant to the investigation;

(c)

requiring the licensee to furnish to the Authority information required in order to complete the investigation; and

(d)

specifying the steps to be taken in order to remedy the breach.

(2)

The licensee shall, within twenty-one days from the date of the notice, make representations in response to the notice and give the Authority all information in its possession required under the notice.

(3)

A person affected by the alleged breach of fair competition or equal access may also make a representation to the Authority in relation to the allegation.

(4)

Where investigation reveals that a licensee is competing unfairly, the Authority may issue an

Disputes between undertakings

order

(a)

requiring the licensee to cease and desist from the activity found to constitute unfair competition or failure to provide equal access;

(b)

requiring the licensee to take action to remedy the unfair competition or failure to provide access;

(c)

requiring the licensee to pay such penalty as the Authority may determine, as reasonable for every month or part of a month during which the breach of the unfair competition continues; and

(d)

declaring any anti-competitive agreement or contract null and void.

(5) The provisions of this Part do not affect the right of a person to take any other action against a licensee under any applicable law of The Gambia.

135. (1) If a dispute arises between undertakings established in the Gambia, the Authority shall, subject to subsection (2), at the request of any party to the dispute, initiate an investigation of the dispute and, as soon as possible and in any case, other than in circumstances which the Authority considers exceptional, within four months from the date on which the dispute was notified to it by a party to the dispute, make a determination to resolve the dispute and ensure compliance with this Act.

(2)

Nothing in subsection (1) shall be construed as restricting or prohibiting the Authority from undertaking of its own initiative any investigation of any disputes it may become aware of and which the Authority believes ought to be investigated.

(3)

Disputes arising between or among licensees that may be referred to the Authority for determination under subsection (1) include disputes relating to

(a)

allegations of unfair competition or abuse of dominant position by a licensee;

(b)

access to, use or an abuse of, and other matters relating to, network interconnection, whether or not an interconnection agreement exists;

(c)

rates, charges and other payments or compensation arising under agreements between licensees;

(d)

frequency coordination;

(e)

technical aspects of the public information and communications services and systems; and

(f)

damage to or interference with licensee’s equipment, network or services by another licensee.

(4)

The Authority may decide not to initiate an investigation referred to in subsection (1) where it is satisfied that other means of resolving the dispute in a timely manner are available to the parties or if legal proceedings in relation to the dispute have been initiated by any party to the dispute.

(5)

Where the Authority decides not to initiate an investigation under subsection (4), it shall inform the parties of the decision.

(6)

Notwithstanding the provisions of subsection (4), if four months from the date of a decision referred to in subsection (3), the dispute is not resolved and the party seeking redress has not initiated legal proceedings before the ordinary courts or any other competent adjudicative body, however so described, the Authority shall initiate an investigation and give a decision in accordance with the provisions of this section.

(7)

On receipt of a reference under this section, or

on otherwise becoming aware of a dispute or a possible default which the Authority believes should be investigated in the public interest, the Authority shall notify the licensee concerned that the matter is under investigation and allow the licensee seven days within which to produce the relevant information and make its representations to any claim or allegation levied against it.

(8)

Based on its own investigations and on written and testimonial representations provided by the parties, the Authority may issue such directives as are within its powers and as it may deem appropriate.

(9)

The decision of the Authority rendered pursuant to this section shall be entered in the register of the Authority within fifteen days, and communicated to all parties to the dispute.

(10)

In issuing a decision under this article the Authority shall state the reasons on which it is based, and shall, subject to such requirements of commercial confidentiality as it may deem appropriate, notify the parties to the dispute with a copy of the decision.

(11)

Unless arbitrary or capricious, the decision of the Authority in a dispute is binding on the parties and, where a contract or agreement exists between the parties, the decision shall have the effect of an addendum to the contract or agreement.

(12)

For the purpose of this section, a decision is arbitrary or capricious if it is not in conformity with the rules of procedure with which the Authority is legally bound to comply.

(13)

The provisions of this section shall not limit, relieve, or in any way affect, the obligations of a licensee under any condition of a licence.

(14)

An undertaking to which a decision under this section applies shall forthwith comply with that decision, and if the undertaking fails to do so, it

Disputes between undertakings and consumers

shall be deemed to have committed an infringement of this section and the Authority may impose an administrative fine for each day of noncompliance in accordance with the provisions of this Act.

(15) The period of non-compliance under subsection (14) is deemed to have commenced from the date of notification of the decision of the Authority or from any such other date as may be communicated in the decision, which date shall, in any case, be on or subsequent to the date of notification.

136. (1) Where a dispute arises between an undertaking and a consumer further to a complaint by a consumer alleging an infringement of this Act, any party to the dispute may refer the dispute to the Authority, provided that in making a complaint the consumer must prima facie show that he or she has been affected by the act or omission of the undertaking giving rise to the complaint.

(2)

Disputes arising between a licensee and a consumer or a class of consumers that may be referred to the Authority for determination under subsection (1) include disputes relating to allegations of

(a)

undue discrimination by a licensee for unauthorized charges or terms for the provision of an information and communications service;

(b)

unauthorized or high charges levied by a licensee; and

(c)

failure of service.

(3)

On receipt of any reference as under subsection (2), or on otherwise becoming aware of dispute that the Authority believes should be investigated, the Authority shall notify all the parties to the dispute that the matter is being investigated.

(4)

In its investigation, the Authority shall regulate its own procedure, which procedure

(a)

may, at its discretion, include the institution of alternative dispute resolution processes for the resolution of the complaints; and

(b)

shall, as far as is reasonably possible, be transparent, simple, inexpensive and conducive to a prompt and fair settlement of the dispute, and shall afford all parties to the dispute reasonable opportunity to make their submissions and to produce any relevant information.

(5)

The Authority may decide not to initiate an investigation in accordance with this section where it is satisfied that other means of resolving the dispute in a timely manner are available to the parties or if legal proceedings in relation to the dispute have been initiated by any party to the dispute.

(6)

The Authority in resolving any disputes referred to it under this section, may issue directives to an undertaking requiring that undertaking to comply with any measure the Authority may specify for the resolution of the dispute.

(7)

The directives may, having regard to its determination of the dispute and to all other relevant matters, include an order to effect the reimbursement of payments received or to make compensation payments which may also include the whole or part of the costs of any party relating to the engagement of a legal practitioner and, or of a technical adviser in relation to any submissions relating to the dispute.

(8)

The Authority shall make publicly available any administrative procedures it may, from time to time, establish in relation to the handling of any disputes referred to it under this section.

(9)

In issuing a decision under this section, the Authority shall state the reasons on which it is

based, and shall, subject to such requirements of commercial confidentiality as it may deem appropriate, notify the parties to the dispute with a copy of the decision.

(10)

The Authority shall publish notice of a decision given under this section and shall indicate where copies of or information regarding the decision may be obtained.

(11)

The Authority shall

(a)

establish procedures or guidelines for the making, receipt and handling of complaints of consumers regarding the conduct or operation of licensees; and

(b)

may, at its discretion, institute alternative dispute resolution processes for the resolution of the complaints or disputes, provided that the licensee’s dispute resolution procedures shall first have been exhausted by the consumer without resolution of the complaint before presentation of the complaint to the Authority.

PART XII – PROCESSING OF PERSONAL DATA AND PROTECTION OF PRIVACY

Principles

137. (1) Information and communications service providers shall be authorized to process the personal data of end-users and subscribers, to the extent required and necessary

(a)

for their identification for the purpose of drawing up contracts for information and communications services;

(b)

to define and amend the contents of these contracts;

(c)

to monitor contractual performance, billing charges and fees as contracted; and

(d)

for enforcing any related claims.

(2)

Information and communications service

providers shall be authorized to process personal data in connection with billing charges for information and communications services, to the extent required and necessary for calculating and billing charges, in particular, the data relating to the date, the duration and place of the service to which it pertains.

(3)

In addition to the identification and other personal data referred to in subsections (1) and (2), information and communications service providers may also process the type of personal data which is technically essential for the provision of services.

(4)

Information and communications service providers shall use in their operations for providing information and communications services only the type of information and communications apparatuses which have sufficient facilities to ensure that personal data is processed only where it is absolutely necessary in terms of the provision of services and for the implementation of other objectives specified in this Act.

(5)

Information and communications service providers shall delete any personal data from its records that is used for purposes other than those defined in subsections (1) to (3) immediately on gaining knowledge of an unlawful data processing.

(6)

The provision of information and communications services shall not be rendered contingent on the user providing consent for processing his or her personal data for purposes other than those defined in subsections (1) to (3).

(7)

Information and communications service providers shall enable the end-users to have access to information concerning the type of personal data the service provider is processing and the objectives, at any time before and during the use of the information and communications services.

Intercept

138. (1) The national security agencies and investigating authorities may monitor, intercept and store

Measures to ensure privacy of communications

communications, and the Authority, when exercising its powers conferred relating to frequency monitoring, or may otherwise intrude communication for surveillance purposes.

(2)

If an alleged threat of murder or physical violence or blackmail occurs, the user or subscriber threatened may in writing authorize the investigating authority to intercept telephone conversations, other information and communications, e-mail messages and any other form of communications on his or her end terminal to investigate and to identify the persons involved in communications within the period of time set in the user's authorization.

(3)

The Minister may determine that information and communications operators and service providers must implement the capability to allow authorized interception of communications.

(4)

A determination under subsection (3), may specify the technical requirements for the capability to allow authorized interception of communications.

139. (1) Information and communications service providers shall take appropriate technical and organizational measures, jointly with other service providers, if necessary, in order to block any unauthorized attempt to intercept, store or monitor communications transmitted and any related traffic data and to prevent any unauthorized or accidental access to communications transmitted and any related traffic data.

(2)

Information and communications service providers shall use in their operations for providing information and communications services only the type of information and communications apparatuses which have sufficient facilities to ensure the privacy of communications defined in subsection (1).

(3)

Information and communications service providers shall be authorized to obtain and store communications transmitted on their network only

Security of information and communications services

to the extent absolutely necessary for the provisions of services for technical reasons.

(4) Information obtained via information and communications networks may be stored on electronic communication terminal equipment, or accessed, only on the end-users' and subscribers' prior consent granted after being in possession of clear and comprehensive information about implications.

140. (1) Information and communications service providers shall take appropriate technical and organizational measures, jointly with other service providers if necessary, in order to safeguard security of their services.

(2)

The technical and organizational measures shall be sufficient, with regard to best practices and the costs of the proposed measures, to afford a level of security appropriate to the risk presented in connection with the services provided.

(3)

In case of a particular risk of a breach of the security of the services in spite of the technical and organizational measures taken, the service provider must inform the subscribers of the risk and of the measures the subscribers may take to enhance the level of protection.

(4)

The information provided under subsection (3) shall also indicate any software and encryption technologies available for use by the end-users and subscribers to safeguard the security of their communications.

(5)

In case of the occurrence of an event effecting or jeopardizing the security of the services, where a previously unknown risk of a breach of the security appears in consequence, the information and communications service provider shall promptly inform the subscriber of the risk, free of charge and of the measures the subscriber may take to enhance the level of protection, and the estimated costs involved.

Storage of traffic data

(6)

The requirement under subsection (5) to inform subscribers of particular security risks does not discharge the service provider from the obligation to take appropriate and immediate measures to restore the normal security level of the service.

(7)

Where the provision of a value added service requires that traffic or location data are forwarded, the service provider shall inform the subscribers or users concerning the type of data required, the purpose and duration of data processing, and as to whether or not the data is to be forwarded to third persons.

(8)

Information and communications service providers shall be authorized to process traffic or location data only on the prior consent of the subscribers or users to whom the data are related, and only to the extent and for the duration as it is necessary for the provision of value added services.

(9)

Users and subscribers have the right to withdraw their consent referred to in subsection (8) at any time.

141. (1) Traffic data relating to subscribers and users processed and stored by an information and communications service provider shall be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication without prejudice to subsections (2) and (9).

(2)

Information and communications service providers shall be authorized to process the following data for subscribers and users for the purposes of billing for calls, collecting the related charges and for keeping the subscriber contracts up to date

(a)

the telephone number or other identifier of the subscriber terminal;

(b)

the address of the subscriber and the type of terminal equipment;

(c)

total units chargeable for the billing period;

(d)

calling and called subscriber numbers;

(e)

the type of calls or other services, their direction, start time, the duration of conversations or the size of data transmitted, the International Mobile Equipment Identity of the network and cell providing the service and of the telephone set used for making use of the service provided in the case of mobile radio telephone networks, and for Internet Protocol networks the identifiers used;

(f)

the date of call or other services provided;

(g)

data connected with the payment of
charges or charges in arrears;

(h)

events of the termination of a subscriber contract if terminated with debts outstanding;

(i)

data relating to other non-information and communications services, in particular, to the billing of charges, that may be used by subscribers and users in the case of telephone services.

(3)

The data referred to in Subsection (2) may be processed until the term of limitation established for claims arising from subscriber contracts and, service providers are authorized to process data solely for the purposes set out in this Act.

(4)

Information and communications service providers may use the type of data referred to in subsection (2) for marketing purposes, subject to the subscriber's prior written consent.

(5)

Within the framework of proceedings for insider trading, market manipulation and unauthorized provisions of services, the data referred to in subsection (2) may be disclosed for the purposes of criminal investigation and prosecution.

(6)

The data referred to in subsection (2), to the extent required for the purpose of data processing, may be transferred to

(a)

the persons involved in billing operations, management of claims and management of sales, and in client information on behalf of the information and communications company;

(b)

the bodies authorized under the law to settle disputes arising in connection with billing and sales;

(c)

authorized national security bodies, investigating authorities and the competent court of justice for the protection of national security, national defence or public safety and for the prosecution of criminal acts and any unauthorized use of the information and communications system; and

(d)

court bailiffs.

(7)

In respect of data transferred under subsections (5) and (6), the obligation to maintain confidentiality shall equally apply to the recipients of the data as to their provider.

(8)

Information and communications service providers shall, for compliance with the disclosure requirements set out in subsection (6)(c), retain

(a)

the data referred to in subsection (2)(a), for three years from the date when the contract is terminated; and

(b)

subject to paragraph (a), the data referred to in subsection (2), for three years.

(9)

Information and communications service providers shall, for compliance with the disclosure requirements set out in subsection (6)(c), be authorized to process, for a maximum of three

Data for the identification of subscribers

years, the data the service provider has obtained in connection with the unlawful use of subscriber terminal equipment, or any attempt to do so, for accessing subscriber services in the information and communications network, in particular, when the equipment has been barred by its rightful owner.

142. (1) In order to prevent any evasion of the obligation to pay charges and other obligations following from the contract, information and communications service providers have the right to transfer to or receive from, other information and communications service providers data for the identification of subscribers, from the data legally processed in accordance with this Act, together with the reasons for the data transfer as laid down in subsection (2), or to raise a joint data bank with corresponding data content in order to determine whether or not to enter into contract with certain subscribers.

(3)

Subscriber data may be forwarded to or recorded in, the data bank if

(a)

a contract was terminated by the service provider on account of overdue charges, or the availability of the service for use by a subscriber was fully or partially suspended;

(b)

judicial or public proceedings were instituted by the service provider against a subscriber on account of outstanding debts, or if the subscriber's place of abode is unknown; or

(c)

the service provider was misled or an attempt was made by an applicant or subscriber to mislead the service provider with the intention of causing damage, in particular when the documents of subscriber identification are obviously false, fraudulent or invalid or for other unlawful purposes.

(4)

Service providers shall promptly inform the

Information to be provided to subscribers

subscribers concerned of the data transfer.

(5)

Where the grounds for lawful processing or forwarding of data no longer exist, the service provider shall take measures to have the subscriber's data erased from the joint data bank, and notify all previously notified service providers and the sub-scriber concerned that the data have been erased.

(6)

Data included in the data bank may be requested by

(a)

the information and communications service provider only for the purpose defined in subsection (1); and

(b)

any consumer so as to find out the data contained in the data bank relating to him or her.

(7)

The parties concerned shall agree in writing as to the creation of a joint data bank, the commissioning of the data manager or data processor, and their rights and obligations.

143. (1) Prior to the conclusion of a subscriber contract, the applicant shall be expressly and clearly informed of

(a)

the processing of his or her data as mentioned in section 142;

(b)

the cases where data used may be transferred, and the information and communications service providers to which data may be transferred;

(c)

the decisions that information and communications service providers may make on the basis of those data;

(d)

the legal remedies the applicant may have recourse to; and

Maintenance of subscriber lists

Use of communications for direct marketing

(e) the manager and data processor and the address of data processing and management.

(2) The subscribers shall be informed without delay of any changes in the conditions mentioned in subsection (1) (a) to (e).

144. (1) Information and communications service providers shall maintain subscriber lists for keeping data that is necessary for the identification of subscribers and for the services used and that can

be	processed	by	the	service		provider	under
authorization		by	this	Act	or	specific	other
legislation.

(2)

Information and communications service providers may use data included in their subscriber directory and address register for providing information, as a service, from the data they contain, but in providing the service, no data exceeding those contained in the subscriber directory or address register may be disclosed, unless the subscriber concerned has approved of the disclosure of more of his or her data.

(3)

The security of the queries from the subscriber directory or address register shall be maintained, and any misuse, in particular any, unauthorized downloading of the data, shall be prevented by appropriate technical solutions.

(4)

No interrelation shall be established between the data of electronic subscriber directories or address registers and other data or directories unless it is inevitable for operational purposes on the part of the information and communications service provider.

145. (1) Applying the Automated calling system free of any human intervention for the purposes of direct marketing and information in respect of a subscriber shall only be applied with prior consent of the subscriber.

Itemised billing and privacy

Prevention of calling line identification – outgoing calls

(2)

No communication serving the purposes of direct marketing or information may be forwarded to a subscriber, by telephone or through other means of information and communications, who has declared that he or she does not wish to receive any publicity matter.

(3)

Communication for direct marketing purposes shall not be forwarded, even with the subscriber's express consent, if the sender cannot be clearly identified.

146. (1) At the request of a subscriber, a provider of a public electronic communications service shall provide that subscriber with bills that are not itemised.

(2) The Authority shall when exercising their functions, have regard to the need to reconcile the rights of subscribers receiving itemised bills with the rights to privacy of calling users and called subscribers, including the need for sufficient alternative privacy enhancing methods of communications or payments to be available to the users and subscribers.

147. (1) This section applies to outgoing calls where a facility enabling the presentation of calling line identification is available.

(2)

The provider of a public communications service shall provide users originating a call by means of that service with a simple means to prevent presentation of the identity of the calling line on the connected line as respects that call.

(3)

The provider of a public communications service shall provide subscribers to the service, as respects their line and all calls originating from that line, with a simple means of preventing presentation of the identity of that subscriber’s line on any connected line.

(4)

The measures to be provided under subsections (2) and (3) shall be provided free of

Prevention of calling or connected line identification of in-coming calls

Publication of information for the purposes of calling or connected line identification

Co-operation for purposes of calling and connected line identify-cation

charge.

148. (1) This section applies to incoming calls.

(2)

Where a facility enabling the presentation of calling line identification is available, the provider of a public communications service shall provide the called subscriber with a simple means to prevent, free of charge for reasonable use of the facility, presentation of the identity of the calling line on the connected line.

(3)

Where a facility enabling the presentation of calling line identification prior to the call being established is available, the provider of a public communications service shall provide the called subscriber with a simple means of rejecting incoming calls where the presentation of the calling line identification has been prevented by the calling user or subscriber.

(4)

Where a facility enabling the presentation of connected line identification is available, the provider of a public communications service shall provide the called subscriber with a simple means to prevent, without charge, presentation of the identity of the connected line on any calling line.

(5)

In this section, “called subscriber” means the subscriber receiving a call by means of the service in question whose line is the called line (whether or not it is also the connected line).

1. Where a provider of a public communications service provides facilities for calling or connected line identification, it shall provide information to the public regarding the availability of those facilities, including information regarding the options to be made available.
2. An information and communications provider shall comply with any reasonable requests made by the provider of the public electronic communications service by means of which facilities for calling or connected line identification are provided.

Tracing of malicious or nuisance calls

Emergency calls

Termination of automatic call forwarding

151. (1) An information and communications provider may override anything done to prevent the presentation of the identity of a calling line where

(a)

a subscriber has requested the tracing of malicious or nuisance calls received on his or her line; and

(b)

the provider is satisfied that the action is necessary and expedient for the purposes of tracing the calls.

(2)

Any term of a contract for the provision of public information and communications services which relates to the prevention of the presentation referred to in subsection (1) shall have effect subject to the provisions of that subsection.

(3)

Nothing in this Act prevents a communications provider, for the purposes of any action relating to the tracing of malicious or nuisance calls, from storing and making available to a person with a legitimate interest, data containing the identity of a calling subscriber which were obtained while subsection (1) applied.

152. (1) For the purposes of this section, “emergency calls” means calls to the national emergency call numbers.

(2) In order to facilitate responses to emergency calls

(a)

no person is entitled to prevent the presentation on the connected line of the identity of the calling line; and

(b)

any restriction on the processing of location data shall be disregarded.

153. (1) Where

(a) calls originally directed to another line are being automatically forwarded to a subscriber’s line as a result of action taken by a

Unsolicited goods, ser-vices or communications

third party; and

(b) the subscriber requests his or her provider of electronic communications services (referred to as the “subscriber’s provider”) to stop the forwarding of those calls,

the subscriber’s provider shall ensure, free of charge, that the forwarding is stopped without any avoidable delay.

(2) For the purposes of subsection (1), every other communications provider shall comply with any reasonable request made by the subscriber’s provider to assist in the prevention of forwarding of those calls.

154. (1) A person who sends unsolicited commercial communications to consumers, shall provide the consumer with

(a)

the option to cancel his or her subscription to the mailing list of that person; and

(b)

the identifying particulars of the source from which that person obtained the consumer’s personal information, on request of the consumer.

(2)

No agreement is concluded where a consumer has failed to respond to an unsolicited communication.

(3)

A person who fails to comply with or contravenes subsection (1) commits an offence and is liable on conviction to a fine of fifty thousand dalasis or imprisonment for a term not exceeding three years, or to both the fine and imprisonment.

(4)

A person who sends unsolicited commercial communications to another person who has advised the sender that the communications are unwelcome, commits an offence and is liable on conviction to a fine of fifty thousand dalasis or imprisonment for a term not exceeding three years, or to both the fine and imprisonment.

Unsolicited calls for direct marketing purposes

Use of automated calling systems for direct marketing purposes

155. (1) A person shall not use, or instigate the use of, a public communications service for the purposes of making unsolicited calls for direct marketing purposes where

(a)

the called line is that of a subscriber who has previously notified the caller that such calls should not for the time being be made on that line; or

(b)

the number allocated to a subscriber in respect of the called line is one listed in the register kept under this section.

(2)

A subscriber shall not permit his or her line to be used in contravention of subsection (1).

(3)

A person shall not be held to have contravened subsection (1) (b) where the number allocated to the called line has been listed on the register for less than twenty-eight days preceding that on which the call is made.

(4)

Where a subscriber who has caused a number allocated to his or her to be listed in the register kept under this section has notified a caller that he or she does not, for the time being, object to such calls being made on that line by that caller, such calls may be made by that caller on that line, notwithstanding that the number allocated to that line is listed in the register.

(5)

Where a subscriber has given a caller notification pursuant to subsection (4) in relation to his or her line

(a)

the subscriber is free to withdraw that notification at any time, and

(b)

where the notification is withdrawn, the caller shall not make such calls on that line.

156. (1) A person shall not transmit, or instigate the transmission of, communications comprising record-ed matter for direct marketing purposes by

Use of facsimile machines for direct marketing purposes

means of an automated calling system except in the circumstances specified in subsection (2).

(2)

The circumstances referred to subsection (1) are where the called line is that of a subscriber who has previously notified the caller that for the time being he or she consents to those communications being sent by, or at the instigation of, the caller on that line.

(3)

A subscriber shall not permit his or her line to be used in contravention of subsection (1).

(4)

For the purposes of this Act, an automated calling system is a system which is capable of

(a)

automatically initiating a sequence of calls to more than one destination in accordance with instructions stored in that system; and

(b)

transmitting sounds which are not live speech for reception by persons at some or all of the destinations so called.

157. (1) A person shall not transmit, or instigate the transmission of, unsolicited communications for direct marketing purposes by means of a facsimile machine where the called line is that of

(a)

an individual subscriber, except in the circumstances specified in subsection (2);

(b)

a corporate subscriber who has previously notified the caller that such communications should not be sent on that line; or

(c)

a subscriber and the number allocated to that line is listed in the register kept under this Act.

(2) The circumstances referred to in subsection (1)(a) are that the individual subscriber has previously notified the caller that he or she consents for the time being to those communications being sent by, or at the instigation

Use of electronic mail for direct marketing purposes

of, the caller.

(3)

A subscriber shall not permit his or her line to be used in contravention of subsection (1).

(4)

A person shall not be held to have contravened subsection (1)(c) where the number allocated to the called line has been listed on the register for less than twenty-eight days preceding that on which the communication is made.

(5)

Where a subscriber who has caused a number allocated to his or her line to be listed in the specific register created under this Act has notified a caller that he or she does not, for the time being, object to those communications being sent on that line by that caller, the communications may be sent by that caller on that line, notwithstanding that the number allocated to that line is listed in the register.

(6)

Where a subscriber has given a caller notification pursuant to subsection (5) in relation to his or her line

(a)

the subscriber shall be free to withdraw that notification at any time; and

(b)

where the notification is withdrawn, the caller shall not send such communications on that line.

158. (1) This section applies to the transmission of unsolicited communications by means of electronic mail to individual subscribers.

(2) Except in the circumstances specified in subsection (3), a person shall not transmit, or instigate the transmission of, unsolicited communications for the purposes of direct marketing by means of electronic mail unless the recipient of the electronic mail has previously notified the sender that he or she consents for the time being to those communications being sent by, or at the instigation

Use of electronic mail for direct marketing pur-poses where the identity or address of the sender is concealed

Information to be provided for the purposes of direct marketing

of, the sender.

(3)

A person may send or instigate the sending of electronic mail for the purposes of direct marketing where

(a)

the person has obtained the contact details of the recipient of that electronic mail in the course of the sale or negotiations for the sale of a product or service to that recipient;

(b)

the direct marketing is in respect of that person’s similar products and services only; and

(c)

the recipient has been given a simple means of refusing (free of charge except for the costs of the transmission of the refusal) the use of his or her contact details for the purposes of the direct marketing, at the time that the details were initially collected, and, where he or she did not initially refuse the use of the details, at the time of each subsequent communication.

(4)

A subscriber shall not permit his or her line to be used in contravention of subsection (2).

159. A person shall not transmit, or instigate the transmission of, a communication for the purposes of direct marketing by means of electronic mail where

(a)

the identity of the person on whose behalf the communication has been sent has been disguised or concealed; or

(b)

a valid address to which the recipient of the communication may send a request that the communications cease has not been provided.

160. (1) Where a public communications service is used for the transmission of a communication for direct marketing purposes, the person using, or

Interpretation of the Chapter

instigating the use of, the service shall ensure that the following information is provided with that communication

(a)

in relation to a communication with automated calling systems and facsimile machines, the particulars mentioned in subsection (2)(a) and (b);

(b)

in relation to a communication through telephone calls, the particulars mentioned in subsection (2)(a) and, if the recipient of the call so requests, those mentioned in subsection (2)(b).

(2) The particulars referred to in subsection (1) are

(a)

the name of the person; and

(b)

the address of the person or a telephone number on which he or she can be reached free of charge.

PART I – INTERPRETATION OF THIS CHAPTER

161. In this Part

"access" in relation to any computer system, means instruct, communicate with, store data in, retrieve data from, or otherwise make use of any of the resources, of the computer system;

‘‘addressee’’, in respect of a data message, means a person who is intended by the originator to receive the data message, but not a person acting as an intermediary in respect of that data message;

‘‘authentication products or services’’ means products or services designed to identify the holder of an electronic signature to other persons;

‘‘automated transaction’’ means an electronic transaction conducted or performed, in whole or in part, by means of data messages in which the conduct or data messages of one or both parties are not reviewed by a natural person in the ordinary course of the natural person’s business or employment;

“bill” includes an invoice, account, statement or other document of similar character and “billing” shall be construed accordingly;

‘‘browser’’ means a computer programme which allows a person to read hyperlinked data messages;

‘‘cache’’ means high speed memory that stores data for relatively short periods of time, under computer control, in order to speed up data transmission or processing;

“call” means a connection established by means of a telephone service available to the public allowing two-way communication in real time;

“certificate” means a record which is issued by an electronic certification service provider for the purpose of supporting a digital signature which

(a)

purports to confirm the identity or other significant characteristics of the person who holds a particular key pair;

(b)

identifies the certification service provider issuing it;

(c)

names or identifies the person to whom it is issued;

(d)

contains the public key of the person to whom it is issued; and

(e)

is signed by a responsible officer of the certification service provider issuing it;

"certification authority" means a person duly authorized under this Act to issue a certificate;

“communication” means any information exchanged or conveyed between a finite number of parties by means of a public electronic communications service, but does not include information conveyed as part of a programme service, except to the extent that the information can be related to the identifiable subscriber or user receiving the information;

“computer service” includes data processing and the storage or retrieval of data;

“computer system” means a device or combination of devices, including input and output devices, but excluding calculators which are not programmable, and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data that performs logic, arithmetic, data storage and retrieval, communication control and other functions;

‘‘consumer’’ means a natural person who enters or intends entering into an electronic transaction with a supplier as the end-user of the goods or services offered by that supplier;

‘‘data’’ means electronic representations of information in any form;

‘‘data controller’’ means a person who electronically requests, collects, collates, processes or stores personal information from or in respect of a data subject;

‘‘data message’’ means data generated, sent, received or stored by electronic means and includes

(a)

voice, where the voice is used in an automated transaction; and

(b)

a stored record;

‘‘data subject’’ means a natural person from, or in respect of whom, personal information has been requested, collected, collated, processed or stored, after the commencement of this Act;

"digital signature" –

(a)

means an electronic signature consisting of a transformation of an electronic record using an asymmetric cryptosystem such that a person having the initial untransformed electronic record and the signer's public key can accurately be determined whether

(i)

the transformation was created using the private key that corresponds to the signer's public key; and

(ii)

the initial electronic record has been altered since the transformation was made; and

(b)

includes voice recognition features, digital fingerprinting or such other biotechnology features or process, as may be prescribed;

‘‘e-government services’’ means any public service provided by electronic means by any public body in The Gambia;

‘‘electronic agent’’ means a computer programme or an electronic or other automated means used independently to initiate an action or respond to data messages or performances in whole or in part, in an automated transaction;

‘‘electronic communication’’ means a communication by means of data messages;

‘‘electronic certification service provider’’ means a person providing an authentication product or service in the form of a digital certificate attached to, incorporated in, or logically associated with, a data message;

“electronic mail” means any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service;

"electronic record" means a record created, generated, sent, communicated, received or stored by electronic means;

"electronic signature" means an electronic sound, symbol, or process attached to, or logically associated with, an electronic record and executed or adopted by a person with the intent to sign the electronic record;

“identifiable person” means a person who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his or her physical, physiological, mental, economic, cultural or social identity;

‘‘information system’’ means a system for generating, sending, receiving, storing, displaying, or otherwise processing, data messages and includes the Internet;

‘‘information system services’’ includes the provision of connections, the operation of facilities for information systems, the provision of access to information systems, the transmission or routing of data messages between or among points specified by a user and the processing and storage of data, at the individual request of the recipient of the service;

“intercept” in relation to a function of a computer, includes listening to, or recording, a function of a computer, or acquiring the substance, its meaning or purport of that function;

‘‘intermediary’’ means a person who, on behalf of another person, whether as agent or not, sends, receives, or stores, a particular data message or provides other services with respect to that data message;

‘‘Internet’’ means the interconnected system of networks that connects computers around the world using the Transmission Control Protocol or Internet Protocol and includes future versions of it;

‘‘Internet Protocol address’’ means the number identifying the point of connection of a computer or other device to the Internet;

"key pair" , in an asymmetric cryptosystem, means a private key and its mathematically related public key, having the property that the public key can verify a digital signature that the private key creates;

“location data” means a data processed in an electronic communications network indicating the geographical position of the terminal equipment of a user of a public electronic communications service, including data relating to

(a)

the latitude, longitude or altitude of the terminal equipment;

(b)

the direction of travel of the user; and

(c)

the time the location information was recorded;

“modification” means a modification of the contents of a computer system by the operation of any function of that computer system or any other computer system as a result of which

(a)

a programme or data held in the computer system is altered or erased;

(b)

a programme or data is added to its contents; or

(c)

an act occurs which impairs the normal operation of the computer system;

‘‘originator’’ means a person by whom, or on whose behalf, a data message purports to have been sent or generated prior to storage, if any, but does not include a person acting as an intermediary with respect to that data message;

“password” means a data by which a computer service or a computer system is capable of being obtained or used;

‘personal data’ means any information relating to an identified or identifiable natural person;

‘‘private body’’ means

(a)

an individual who carries or has carried on any trade, business or profession, but only in that capacity;

(b)

a partnership which carries or has carried on any trade, business or profession; or

(c)

any former or existing body corporate, but not a public body;

"private key" means the key of a key pair used to create a digital signature;

"programme" means a set of instructions, expressed in words, codes, schemes or any other form, which is capable, when incorporated in a machine readable medium, of causing a computer to perform or achieve a particular task or result;

“processing” means processing of personal data;

“processing of personal data” means an operation or set of operations which is performed upon personal data, whether or not by automatic means, such as, collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or other-wise making available, alignment or combination, blocking erasure or destruction;

"public key" means the key of a key pair used to verify a digital signature;

“public communications provider” means a provider of a public electronic communications network or a public electronic communications service;

‘‘public body’’ means the Government, a Depart

ment	of	State,	Government		institutions,
constitutional		and	statutory	bodies	and	Local
Government authorities;

‘‘registrant’’ means an applicant for or holder of a domain name;

‘‘registrar’’ means an entity which is licensed by the Authority to update a repository;

‘‘registry’’ means an entity licensed by the Authority to manage and administer a specific sub-domain;

“relying party” means a person that may act on the basis of a certificate or an electronic signature;

‘‘repository’’ means the primary register of the information maintained by a registry;

“subscriber” means a person who is a party to a contract with a provider of public electronic communications services for the supply of those services;

“subscriber information” means any information, contained in the form of computer data or any other form, that is held by a service provider, relating to subscribers, other than traffic or other data, by which can be established

(a)

the type of the communication service used, the technical provisions taken to use the communication service and the period of the service;

(b)

the subscriber’s identity, postal or geographical address, telephone and other access number, billing and payment information, available on the basis of a service agreement or arrangement; or

(c)

any other information on the site of installation of a communication equipment available on the basis of a service agreement or arrangement;

‘‘TCP and IP’’ means the Transmission Control Protocol and Internet Protocol used by an information system to connect to the Internet;

‘‘third party’’, in relation to a service provider, means a subscriber to the service provider’s services or any other user of the service provider’s services or a user of information systems;

“traffic data” means any data processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing in respect of that communication and includes data relating to the routing, duration or time of a communication;

‘‘transaction’’ means a transaction of either a commercial or non-commercial nature, and includes the provision of information and e-government services;

"trustworthy system" means computer hardware, software, and procedures that

(a)

are reasonably secure from intrusion or misuse;

(b)

provide a reasonable level of availability, reliability and correct operation;

(c)

are reasonably suitable for performing their intended functions; and

(d)

adhere to generally accepted security procedures;

Functions of the Ministry and the Authority in relation to information society issues

‘user’ means a natural person using a publicly available electronic communications service, for private or business purposes, without necessarily having subscribed to that service;

“value added service” means a service which requires the processing of traffic data or location data beyond that which is necessary for the transmission of a communication or the billing in respect of that communication.

PART II – FUNCTIONS OF THE DEPARTMENT OF STATE

162. (1)The functions of the Ministry in relation to electronic transactions and e-government are to

(a)

facilitate electronic communications by means of reliable electronic records;

(b)

facilitate electronic commerce and eliminate barriers to electronic commerce resulting from uncertainties over writing and signature requirements;

(c)

promote public confidence in the integrity and reliability of electronic records and electronic transactions;

(d)

foster the development of electronic commerce through the use of electronic signatures to lend authenticity and integrity to correspondence in any electronic medium;

(e)

facilitate access to e-government services; and

(f)

minimise the incidence of forged electronic records and fraud in electronic commerce and other electronic transactions;

(2) The Ministry may

(a) liaise, consult, and cooperate with, any per

Unauthorized access to computer data

son or other authority; and

(b) appoint experts and other consultants on such conditions as it may determine.

PART III -COMPUTER MISUSE AND CYBER CRIME

163. (1) Subject to subsections (2) and (3), a person who causes a computer system to perform a function, knowing that the access he or she intends to secure is unauthorized, commits an offence and is liable on conviction to a fine of two hundred thousand dalasis or imprisonment for a term not exceeding five years, or to both the fine and imprisonment.

(2)

A person shall not be liable under subsection

(1)

where he or she

(a)

is a person with a right to control the operation or use of the computer system and exercises such right in good faith;

(b)

has the express or implied consent of the person, empowered to authorise him or her, to have such an access;

(c)

has reasonable grounds to believe that he or she had the consent as specified in paragraph (b);

(d)

is acting pursuant to measures that can be taken under this Act; or

(e)

is acting in reliance of any statutory power arising under any enactment for the purpose of obtaining information, or of taking possession of, any document or other property.

(3)

An access by a person to a computer system is unauthorized where the person

(a) is not himself or herself entitled to control

Access with intent to commit offences

Unauthorized access to and interception of computer service

access of the kind in question; and

(b) does not have consent to access by him or herself of the kind in question from any person who is so entitled.

(4) For the purposes of this section, it is immaterial that the unauthorized access is not directed at

(a)

any particular programme or data;

(b)

a programme or data of any kind; or

(c)

a programme or data held in any particular computer system.

164. (1) A person who causes a computer system to perform any function for the purpose of securing access to any programme or data held in any computer system, with intent to commit an offence under any other enactment, commits an offence and is liable on conviction to a fine of two hundred thousand dalasis or imprisonment for a term not exceeding five years, or to both the fine and imprisonment.

(2) For the purposes of this section, it is immaterial that

(a)

the access referred to in subsection (1) is authorized or unauthorized;

(b)

the further offence to which this section applies is committed at the same time when the access is secured or at any other time.

165. (1)Subject to subsection (5), a person who, by any means, knowingly –

(a)

secures access to any computer system for the purpose of obtaining, directly or indirectly, any computer service; or

(b)

intercepts or causes to be intercepted, directly or indirectly, any function of, or any data within a computer system,

Unauthorized modification of computer material

commits an offence.

(2)

A person convicted for an offence under subsection (1) is liable on conviction, in the case of –

(a)

an individual, to a fine of two hundred thousand dalasis or imprisonment for a term not exceeding five years, or to both the fine and imprisonment;

(b)

a body corporate, to a fine of not less than five hundred thousand dalasis.

(3)

Where as a result of the commission of an offence under subsection (1), the operation of the computer system, is impaired, or data contained in the computer system is suppressed or modified, a person convicted of the offence is liable to a further fine of five hundred thousand dalasis.

(4)

For the purpose of this section, it is immaterial that the unauthorized access or interception is not directed at

(a)

any particular programme or data;

(b)

a programme or data of any kind; or

(c)

a programme or data held in any particular computer system.

(5)

A person is not liable under subsection (1) if he or she

(a)

has the express or implied consent of both the person who sent the data and the intended recipient of the data; or

(b)

is acting in reliance of any statutory power.

166. (1) Subject to subsections (3) and (4), a person who, knowingly does an act which causes an unauthorized modification of data held in any computer system commits an offence and is liable on conviction in the case of

(a)

an individual, to a fine of two hundred thousand dalasis or imprisonment for a term not exceeding five years, or to both the fine and imprisonment;

(b)

a body corporate, to a fine of not less than five hundred thousand dalasis.

(2) Where as a result of the commission of an offence under this section

(a)

the operation of the computer system;

(b)

access to any program or data held in any computer; or

(c)

the operation of any program or the reliability of any data,

is suppressed, modified or otherwise impaired, a person convicted for the offence is liable to a further fine of five hundred thousand dalasis.

(3)

A person is not liable under this section where he or she is acting

(a)

pursuant to measures that can be taken under this Act; or

(b)

in reliance of any other statutory power.

(4)

A modification is unauthorized if

(a)

the person whose act causes it is not himself or herself entitled to determine whether the modification should be made; and

(b)

he or she does not have consent to the modification from any person who is so entitled.

(5)

For the purposes of this section, it is immaterial whether an unauthorized modification or any intended effect of it, is permanent or merely temporary.

Damaging or denying access to computer system

Unlawful possession of devices and data

167. (1) A person who, without lawful authority or lawful excuse, does an act which causes directly or indirectly

(a)

a degradation, failure, interruption or obstruction of the operation of a computer system; or

(b)

a denial of access to, or impairment of any program or data stored in, the computer system,

commits an offence.

(2) A person who commits an offence under subsection (1) is liable on conviction, in the case of

(a)

an individual, to a fine of two hundred thousand dalasis or imprisonment for a term not exceeding five years, or to both the fine and imprisonment;

(b)

a body corporate, to fine of not less than five hundred thousand dalasis.

168. (1) A person who knowingly manufactures, sells, procures for use, imports, distributes or otherwise makes available, a computer system or any other device, designed or adapted primarily for the purpose of committing an offence under subsections (3) to (8), commits an offence.

(2)

A person who knowingly receives, or is in possession of, without sufficient excuse or justification, one or more of the devices mentioned in subsection (1) commits an offence.

(3)

A person who is found in possession of any data or programme with the intention that the data or programme be used, by the person himself or herself or another person, to commit or facilitate the commission of an offence under this Act, commits an offence.

(4)

For the purposes of subsection (3), possession

of any data or programme includes

Unauthorized disclosure of password

(a)

having possession of computer system or data storage device that holds or contains the data or programme;

(b)

having possession of a document in which the data or programme is recorded; or

(c)

having control of data or programme that is in the possession of another person.

(5) A person who commits an offence under this section is liable on conviction, in the case of

(a)

an individual, to a fine of two hundred thousand dalasis or imprisonment for a term not exceeding five years, or to both the fine and imprisonment; and

(b)

a body corporate, to a fine of not less than five hundred thousand dalasis.

169. (1) A person who, knowingly discloses any password, access code, or any other means of gaining access to any program or data held in any computer system –

(a)

for any wrongful gain;

(b)

for any unlawful purpose; or

(c)

knowing that it is likely to cause prejudice to any person,

commits an offence.

(2) A person who commits an offence under subsection (1) is liable on conviction, in the case of

(a) an individual, to a fine of two hundred thousand dalasis or imprisonment for a term not exceeding five years, or to both the fine and imprisonment;

Publishing of information which is obscene in electronic form

Re-programming of mobile tele-phone

Possession or supply of anything for re

(b) a body corporate, to a fine of not less than five hundred thousand dalasis.

170. (1) A person who publishes or transmits or causes to be published in electronic form, any material which is lascivious or appeals to the prurient interest, or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied therein, commits an offence.

(2) A person who commits an offence under subsection (1) is liable on conviction, in the case of

(a)

an individual, to a fine of two hundred thousand dalasis or imprisonment for a term not exceeding five years, or to both the fine and imprisonment;

(b)

a body corporate, to a fine of not less than five hundred thousand dalasis.

171. (1) A person who knowingly or intentionally, while not being a manufacturer of a mobile telephone devices or authorized agent of the manufacturer, changes mobile telephone equipment identity, or interferes with the operation of the mobile telephone equipment identity commits an offence.

(2) A person who commits an offence under subsection (1) is liable on conviction, in the case of

(a)

an individual, to a fine of two hundred thousand dalasis or imprisonment for a term not exceeding five years, or to both the fine and imprisonment;

(b)

a body corporate, to a fine of not less than five hundred thousand dalasis.

171. (1) A person commits an offence if he or she

programming mobile telephone

Computer-related extortion, fraud and forgery

(a)

has in his or her custody or under his or her control anything which may be used for the purpose of changing or interfering with the operation of a mobile telephone equipment identifier, and intends to use the thing unlawfully for that purpose or to allow it to be used unlawfully for that purpose;

(b)

supplies anything which may be used for the purpose of changing or interfering with the operation of a mobile telephone equipment; knows or believes that the person to whom the thing is supplied intends to use it unlawfully for that purpose or to allow it to be used unlawfully for that purpose; and

(c)

offers to supply anything which may be used for the purpose of changing or interfering with the operation of a mobile telephone equipment identifier and knows or believes that the person to whom the thing is offered intends if it is supplied to him or her to use it unlawfully for that purpose or to allow it to be used unlawfully for that purpose.

(2) A person convicted of an offence under subsection (1) is liable, on conviction, in the case of

(a)

an individual, to a fine of two hundred thousand dalasis or imprisonment for a term not exceeding five years, or to both the fine and imprisonment;

(b)

a body corporate, to a fine of not less than five hundred thousand dalasis.

173. (1) A person who performs or threatens to perform any of the acts described in this Part for the purpose of obtaining an unlawful proprietary advantage by undertaking to cease or desist from the act, or by undertaking to restore any damage caused as a result of those acts, commits of an offence.

Indecent photographs of children

(2)

A person who performs any of the acts described in this Part for the purpose of obtaining any unlawful advantage by causing fake data to be produced with the intent that it be considered or acted on as if it were authentic, commits of an offence.

(3)

A person who commits an offence under this section is liable on conviction, in the case of

(a)

an individual, to a fine of two hundred thousand dalasis or imprisonment for a term not exceeding five years, or to both the fine and imprisonment;

(b)

a body corporate, to a fine of not less than five hundred thousand dalasis.