By Rosalbaneri FRANKLIN-TETTEH
The 21st century has ushered in an era of unprecedented digitalization, transforming how personal and professional information is created, shared, and stored.
Data protection refers to the practices, laws, and technologies designed to safeguard personal data from unauthorized access, use, disclosure, alteration, or destruction.
It is a cornerstone of privacy rights, ensuring individuals maintain control over their information. In the legal profession, where sensitive client information is handled daily, the importance of robust data protection cannot be overstated.
What Is Data Protection?
Data protection is the process of ensuring the privacy, security, and proper management of personal data. Personal data includes any information relating to an identified or identifiable individual, known as a data subject. Examples include names, addresses, identification numbers, and financial or health records.
In data protection, key terms  include:
- Consent:This is an indication of the data subject’s willingness for their personal data to be processed given in a manner that is evidential, informed unambiguous and revocable.
- Data Subject: The individual whose personal data is being collected, processed, or stored.
- Data Controller: The person or organization that determines the purpose and means of processing personal data. In legal practice, law firms or lawyers often act as data controllers.
- Data Processor: A person or entity that processes data on behalf of the controller. This can include IT service providers, cloud storage platforms, or administrative support services.
Understanding the above is crucial for compliance with data protection laws and ensuring that rights and responsibilities are clearly delineated.
The seven principles of data protection and their relevance to legal practice
The foundation of data protection is built upon seven key principles, which serve as a guide for the ethical and legal handling of personal information. These principles are enshrined in data protection laws worldwide, including Ghana’s Data Protection Act, 2012 (Act 843), and are particularly pertinent to the legal profession.
- Accountability: Legal practitioners, as data controllers, are responsible for ensuring compliance with data protection principles and must be able to demonstrate such compliance. This includes implementing policies, conducting audits, and training staff.
- Lawfulness of Processing: Client data must be collected and processed lawfully. For lawyers, this means ensuring consent is obtained where required and that data is used only in ways permitted by law. Consent, in this context, must be freely given, specific, informed, and unambiguous. It ensures that clients are aware of and agree to how their information will be used.
- Specification of Purpose: Data should only be collected for specified, explicit, and legitimate purposes. Lawyers must ensure that client information is used strictly for case-related matters and not for unrelated purposes.
- Data Security Safeguards: Adequate security measures must be implemented to protect data from unauthorized access, loss, or breaches. Legal professionals must adopt encrypted communication, secure storage systems, and robust cybersecurity measures to safeguard sensitive client information.
- Openness: Data subjects must be informed about how their data is being collected, processed, and used, ensuring transparency. Lawyers should clearly communicate their data handling practices to clients, fostering trust and accountability.
- Minimality: Only data that is necessary for the intended purpose should be collected and processed. Lawyers should limit data collection to what is relevant for the legal matter at hand, avoiding excessive or intrusive data requests.
- Quality of Information: Personal data must be accurate and kept up to date. Inaccurate data should be corrected or deleted promptly. Legal practitioners must ensure that client records are regularly reviewed and updated to maintain accuracy.
By adhering to these principles, legal professionals not only comply with statutory obligations but also uphold the ethical standards of confidentiality and integrity that are central to the profession.
The nature of data protection in legal practice
Legal professionals are uniquely positioned in the data protection landscape. They act as custodians of client information and are ethically and legally obligated to ensure its confidentiality. The proliferation of digital tools, cloud-based storage, and remote work has increased the risks associated with data breaches. From electronic case files and email correspondence to digital discovery and online client portals, the sheer volume and sensitivity of data handled by legal practitioners demand robust protective measures.
In Ghana, the adoption of technology in legal practice has mirrored global trends, with electronic filing systems, virtual court sessions, and digital legal research platforms becoming commonplace. However, these advancements also expose the profession to potential risks, making compliance with data protection laws and best practices an imperative.
The legal framework for data protection in Ghana
Ghana’s Data Protection Act, 2012 (Act 843), provides the legal framework for data protection in the country. It establishes the rights of data subjects, outlines the responsibilities of data controllers and processors, and sets penalties for non-compliance. Lawyers and law firms, as data controllers, must adhere to these provisions to ensure the lawful processing, storage, and sharing of client information.
The rights of data subjects
Legal practitioners, as well as their clients, are entitled to specific rights under the Data Protection Act. These rights empower individuals to maintain control over their personal data and hold data controllers accountable. The rights include:
- The Right to Be Informed: Data subjects must be informed about how their data is being collected, used, and stored.
- The Right of Access: Individuals have the right to access their personal data held by a controller.
- The Right to Rectification: Data subjects can request corrections to inaccurate or incomplete data.
- The Right to Erasure: Also known as the “right to be forgotten,” individuals can request the deletion of their data under certain conditions.
- The Right to Restrict Processing: Data subjects can limit how their data is processed in specific circumstances.
- The Right to Data Portability: Individuals have the right to receive their data in a structured, commonly used format and transfer it to another controller.
- The Right to Object: Data subjects can object to the processing of their data, especially for direct marketing purposes
- Rights Related to Automated Decision-Making: Individuals have the right to challenge decisions made solely through automated means if such decisions have significant effects on them.
Understanding and respecting these rights is critical for legal practitioners, who must also educate their clients on how to exercise these rights effectively.
The importance of data protection in the legal profession
- Preserving client confidentiality – Confidentiality is a cornerstone of the lawyer-client relationship. Data protection laws reinforce this principle by providing a legal framework for securing client information. Breaches of confidentiality, whether intentional or accidental, can erode trust, harm reputations, and expose clients to significant risks.
- Mitigating legal and financial risks – Non-compliance with data protection laws can result in severe penalties, including fines and legal sanctions. For law firms, this not only entails financial loss but also reputational damage that can undermine their standing in the profession.
- Enhancing professional responsibility – Adhering to data protection principles aligns with the ethical obligations of legal practitioners. It demonstrates a commitment to upholding the highest standards of professionalism and integrity, fostering trust between lawyers and their clients.
- Safeguarding digital ecosystems – With the increasing reliance on digital tools, the legal profession must actively contribute to a secure digital environment. Implementing robust data protection measures helps mitigate cybersecurity threats and ensures the resilience of legal systems.
- Empowering clients – By prioritizing data protection, legal practitioners can educate and empower clients about their rights under the law. This includes informing them about how their data is being used, stored, and protected, fostering a culture of accountability and vigilance.
Recommendations for the legal profession
To strengthen data protection practices within the legal profession, the following steps are essential:
- Investing in Secure Technology: Law firms must adopt secure digital tools, including encrypted communication platforms, secure cloud storage, and robust cybersecurity measures.
- Continuous Training: Regular training on data protection laws and best practices should be mandatory for all legal professionals and support staff.
- Data Protection Policies: Firms should develop and implement comprehensive data protection policies that address data collection, storage, processing, and disposal.
- Engaging with the Data Protection Commission: Lawyers should collaborate with the Commission to ensure compliance and stay updated on regulatory changes.
- Raising Client Awareness: Legal professionals should educate clients about their data protection rights and encourage them to be vigilant in safeguarding their information.
Conclusion
Data protection is an indispensable aspect of modern legal practice. As custodians of sensitive information, legal professionals have a duty to prioritize the privacy and security of their clients. Ghana’s Data Protection Act provides a solid foundation for achieving this, but the onus lies on individuals and institutions to enforce these principles. By fostering a culture of vigilance, accountability, and compliance, the legal profession can navigate the challenges of the digital age while upholding its core values of trust, integrity, and justice.
