World Intellectual Property Organization

Gambia

Information and Communications Act, 2009

 

 


INFORMATION AND COMMUNICATIONS
ACT, 2009

ARRANGEMENT OF SECTIONS Section

CHAPTER I – PRELIMINARY

  1. Short title
  2. Interpretation
  3. Scope of this Act
  4. Consultation of stakeholders
  5. Keeping of records

CHAPTER II – REGULATION OF INFORMATION AND COMMUNICATION SYSTEMS AND SERVICES

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

CHAPTER III – INFORMATION SOCIETY ISSUES

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

CHAPTER IV – REGULATORY PROVISIONS FOR BROADCASTING CONTENT

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

CHAPTER V – MISCELLANEOUS

  1. Offences
  2. Offences of employees
  3. Assault
  4. Contravention or failing to comply with this Act
  5. Offences by body corporate
  6. Act to have overriding effect
  7. Regulations and guidelines
  8. Repeal
  9. Transitional provisions

INFORMATION AND COMMUNICATIONS
ACT, 2009

THE GAMBIA

NO. 2 OF 2009
Assented to by The President,
This 29
th day of May, 2009

AN ACT to provide for the re-structuring, development, and regulation of the information and communications sectors in The Gambia and for matters connected therewith.

29th

[ May, 2009 ]

ENACTED by the President and the National Assembly.

CHAPTER I – PRELIMINARY

Short title

1. This Act may be cited as the information and communications Act, 2008.

Interpretation

2. In this Act, unless the context otherwise requires

“access” means the making available of facilities or services of any operator under defined conditions, on either an exclusive or non-exclusive basis, for the purpose of providing information and communications services, including access to

(a)
network elements and associated facilities, which may involve the connection of equipment by fixed or non-fixed means (and includes access to the local loop and
to facilities and services necessary to provide services over the local loop);
(b)
physical infrastructure including, buildings, cable engineering networks, ducts and masts and poles;
(c)
relevant software systems, including operational support systems;
(d)
number translation facilities or to systems offering equivalent functionality;
(e)
fixed and mobile networks, in particular for roaming;
(f)
conditional access systems for digital television services; and
(g)
access to virtual network services;

“allocation” means the entry in the Table of Frequency Allocations of a given frequency band for the purpose of its use by one or more terrestrial or space radio communication services or the radio astronomy service under specified conditions and applies to the frequency band concerned;

“alternative infrastructures” means any installation or a set of installations that allow or contribute to allow either the transmission or to the transmission and the routing of the information and communications signals;

“alternative infrastructure operators” means entities owning infrastructures or rights that may, without undertaking any public information and communications network operator’s activities as defined by present Act, support or contribute to the support of information and communications networks;

“apparatus” means an equipment, instrument, or any other object, for use in the provision or in the reception of information and communications

No. 4 of 2002

services, and includes a fitting to or accessory of the equipment, instrument or object;

“assignment” means an assignment by the Authority of rights to use specified spectrum;

“associated facilities” means those facilities associated with an information and communications network or an information and communications services which enable or support the provision of services via that network or service, including conditional access systems and electronic programme guides;

“authorisation” means an individual licence, class licence or permit issued under this Act which grants a set of rights and obligations to an entity, and grants an entity the right to

(a)
install and operate information and communications systems; or
(b)
provide information and communications services and includes individual licence as defined in Part III of this Chapter;

“authorised provider” means a person who holds a valid authorisation to operate an information and communications system or provide an information and communications service under this Act;

“Authority” means The Gambia Public Utilities Regulatory Authority established under The Gambia Public Utilities Regulatory Authority Act, 2001 or any other regulatory authority to which the Government has given the responsibility for the regulation of information and communications services, information and communications networks, associated facilities and associated services;

“Board” means the Board of the Authority;

"broadcaster" means the natural or legal person who has editorial responsibility for the composition of television programme services for reception by the general public and transmits them, or has them transmitted, complete and unchanged, by a third party;

“broadcasting” means the transmission of programmes, whether or not encrypted, by radio waves or other means of communication, including terrestrial antennae, information and communications networks or satellite in coded or not coded form, aimed for reception by the public, with the aid of any equipment or apparatus; “broadcasting apparatus” means an apparatus used for broadcasting, but does not include a private radio receiving set or a private television receiver;

“broadcasting service” means a service which provides regular broadcasting;

“class licence” means a general authorization granted by the Authority to any legal entity meeting the applicable conditions appended to it and which obligates the legal entity in question to

(a)
obtain an explicit decision from the Authority before exercising rights deriving from the authorization; and
(b)
communicate information about the service concerned as necessary to assure proper compliance with the applicable conditions appended thereto in accordance with current regulations;

“closed user group” means a group of mobile telephone subscribers who can only make calls and receive calls, excluding short messaging service, from members within the group;

“Code of Conduct”, in relation to broadcasting, means the Code of Conduct established by the Authority under section 228;

“commercial activities connected with information and communications” means

(a)
the provision of information and communica
tions service;
(b)
the supply or export of information and communications apparatus; or
(c)
the production or acquisition of the information and communications apparatus for supply or export;

"consumer" means any natural person who uses or requests a publicly available information and communications service for non-professional purposes;

“convey” includes transmit and transport and “conveyance” shall be construed accordingly;

“customer premises equipment” means equipment on the premises of a person not being an information and communications licensee, which is used to originate, route or terminate information and communications services;

“declaration” means an act of registration of information and communications activities with the Authority by a network operator or service provider which, under the terms of this Act, does not require the operator or provider to obtain an explicit decision from the Authority prior to commencing the operation of the network or provision of the service, but grants the entity a permit proving registration;

“Ministry” means the Ministry responsible for information and communications;

‘‘domain name’’ means an alphanumeric design-nation that is registered or assigned in respect of an electronic address or other resource on the Internet;

‘‘domain name system’’ means a system to translate domain names into Internet Protocol addresses or other information;

“electromagnetic system” means a system by which messages or sound or light or visual images may be transmitted by

(a)
wire activated by electricity;
(b)
radio waves or any other electromagnetic energy;
(c)
optical energy; or
(d)
a combination of any two or more of those systems;

“encrypted” means treated electronically or otherwise so as to prevent intelligible reception in the absence of the means of decryption;

"end-user" means a user not providing public communications networks or publicly available information and communications services;

force majeure” includes

(a)
an act of God, riot or civil commotion;
(b)
a strike, lock-out or other industrial disturbance;
(c)
a war, blockade or an insurrection;
(d)
an earthquake, hurricane, a flood, a fire or an explosion;
(e)
an outbreak of pestilence or epidemic;
(f)
Government rationing of electricity or other wartime or emergency control imposed by Government; and
(g)
an embargo or trade restriction;

“frequency” means the number of complete cycles per second of a wave of electromagnetic energy; “Fund” means the Universal Service Fund that may be established under section 117;

“general authorization” means a permit granted by the national regulatory authority to any legal entity meeting the applicable conditions appended to it and which obligates the legal entity in question to

(a)
obtain an explicit decision from the authority before exercising rights deriving from such document; and
(b)
communicate information about the service concerned as necessary to assure proper compliance with the applicable conditions appended to the authorisation in accordance with current regulations;

“harmful interference” means interference which

(a)
endangers the functioning of a radio navigation service or of other safety services; or
(b)
otherwise seriously degrades, obstructs or repeatedly interrupts a radio communications service operating in accordance with the applicable regulations;

"illicit device" means any equipment, software, or arrangement designed or adapted to give access in an intelligible form to one of the services constituting a protected service without the authorisation of the service provider;

“individual licence” means an authorization which is granted to a legal entity by the Minister and which grants the entity specific rights or imposes specific obligations which are in addition to the rights and obligations attached to general authorizations or class licences and which obligates the legal entity in question to

(a)
obtain an explicit decision from the Minister before exercising rights deriving from such document; and
(b)
communicate information about the

service concerned.

“information and communications” means the emission, transmission or reception of information, including without limitation, voice, sound, data, text, video, animation, visual images, moving images and pictures, signals or a combination of them by means of magnetism, radio or other electromagnetic waves, optical, electromagnetic systems or any agency of a like nature, whether with or without the aid of tangible conduct;

“information and communications network identifier” means the addressing facilities identifying information and communications network points, including network termination points, or terminal equipment connected to an information and communications network in order to direct information specifically to the information and communications network points or the relevant terminal equipment or to identify the sender of information;

“information and communications network or system” means transmission systems and, where applicable, switching or routing equipment and other resources which permit the conveyance of signals by wire, by radio, by optical or by other electro-magnetic means, including satellite networks, fixed (circuit and packet-switched, including internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;

“information and communications services” means a service normally provided for remuneration which consists of the conveyance of signals on information and communications networks, including information and communications services and transmission services in networks used for broadcasting as well as services providing or exercising editorial control over content transmitted using information and communications networks;

“information society services” means services provided for remuneration, at a distance, with electronic means and on individual request of the recipient of the service and include, in particular, the sales of goods and services, services of access to information or advertising over the Internet and access to public communications network services, transmission of data, or storing the recipient’s data in the public communications network;

“interconnection” means the physical and logical linking of public information and communications systems and services used by the same or a different authorized provider, implemented between public network operators in order to allow

(a)
subscribers of one authorized provider to
(i)
communicate with users of the same or another undertaking, or
(ii)
access services provided by another unde -taking; and
(b)
services to be provided by the parties involved or other parties who have access to the network to provide services;

“interoperability of networks and terminal equipment” means the ability of equipment to function, first, with the network, and, second, with other terminal equipment that can be used to access the same service;

“licensee” means a person who owns, operates or provides an Information and Communications network or electronic communications service under a licence granted under this Act;

“mass communications network” means a public information and communications network primarily used for broadcasting whereby television and radio programmes or other material is transmitted in identical form to all recipients;

“message” means any communication sent, received, or made, by information and communications, or given to any person, to be sent by electronic communications or to be delivered;

“National Numbering Plan” means the numbering plan prepared and managed by the Authority for use in connection with the supply of information and communications services in The Gambia;

“network controller” means the owner or operator of the network into which access is sought;

“network facilities” means any element or combination of elements of physical infrastructure used principally for, or in connection with, the provision of information and communications services and includes an information and communications network, conditional access systems and electronic programme guides, but does not include customer equipment;

“network termination point” means the physical point at which a subscriber is provided with access to a public communications network and, in the case of networks involving switching or routing, the network termination point is identified by means of a specific network address, which may be linked to a sub-scriber number or name;

“number” means a series of digits indicating an electronic communication network termination point, comprising the information necessary in order to route calls to that termination point;

“number portability” means the ability of users of an information and communications service to retain existing information and communications numbers without any impairment of quality, reliability or convenience when changing from one information and communications service licensee to another;

“open network provisions or architecture” means the harmonized conditions of communications system, including technical interfaces, access to frequencies tariff principles that allow efficient access to public information and communications systems;

“operator” means a person who owns, operates or provides a regulated information and communications system or information and communications service;

“operator having significant market power” means a legal entity which, either on its own or in conjunction with other legal entities, holds a position equivalent to a dominant position, that is, a company which has a significant capacity to act in a manner independent of its competitors, its customers and ultimately consumers;

“prescribed” means set out in this Act or by regulations made under this Act;

“private communications service” means an information and communications service provided by an authorized provider for

(a)
its own use over a private information and communications system; or
(b)
the use of third parties,

within an identifiable, wholly self-contained private information and communications system which does not inter-connect with a public information and communications system;

“public communications network” means an information and communications network used wholly or mainly for the provision of publicly available information and communications services;

“public telephone network” means an information and communications network which

(a)
is used to provide publicly available telephone services; and
(b)
supports the transfer between network ter

No. 4 of 2002

mination points of speech communications, and also other forms of communication, such as facsimile and data;

“publicly available telephone service” means a service available to the public for originating and receiving national and international calls and access to emergency services through a number or numbers in a national or international telephone numbering plan, and where relevant, includes one or more of the following services

(a)
the provision of operator assistance, directory enquiry services, directories,
(b)
the provision of public pay phones;
(c)
the provision of service under special terms;
(d)
the provision of special facilities for customers with disabilities or with special social needs; or
(e)
the provision of non-geographic services;

“radio communication” means any emission, broad-casting, transmission or reception of radio waves specifically for communication purposes

“Regulatory Authority Act” means The Gambia Public Utilities Regulatory Authority Act, 2001;

“Minister” means the Minister responsible for information and communications;

“ service provider” means an operator;

“subscriber” means a person who is a party to a contract with a provider of a publicly available information and communications service or the beneficiary of the provisions of tariffs, including prices, terms and conditions of service, filed by an operator as required by the Authority, for the supply of the service;

“transmission” includes emission, switching and reception;

“transport” includes conveyance;

“Union” means the International Telecommunications Union;

“universal access obligation” means the obligation to

(a)
provide basic telephone services for social reason at an affordable price or free of charge to statutorily designated persons pursuant to rules and regulations made by the Authority; or
(b)
contribute to the Fund;

“universal service” means a defined minimum set of services of specified quality which is available to all users independent of their geographical location, and in the light of specific national conditions, at an affordable price;

“user” means a person who uses, or requests, a publicly available information and communications service, and includes a subscriber.

Scope of this Act

3. (1) This Act applies to all information and communications services and systems as defined in this Act, other than those specially exempted under this Act.

(2) This Act does not apply to information and communications equipment (particularly radio systems and information and communications terminal equipment) manufactured and used exclusively for national defence purposes, the use of those frequencies shall be defined in accordance with the definitions in this Act.

Consultation of

4. (1) Except in relation to

stake-holders

(a)
any complaint or dispute being dealt with in accordance with this Act;
(b)
the exercise of any enforcement powers of the Authority under this Act; or
(c)
cases where the Authority considers that there is an urgent need to act in order to safeguard competition and protect the interests of users in accordance with the law,

the Authority shall, where it intends to take a decision in accordance with this Act which has a significant impact on a market for information and communications networks or services, make available to interested parties a statement of the proposed decision and give the interested parties the opportunity to comment on the proposed decision within a period of sixty days, or as otherwise determined, depending on the circumstances.

(2)
The Authority shall
(a)
publish its consultation procedures which may include open meetings; and
(b)
establish a single information point through which all current consultations can be accessed.
(3)
The results of any consultations under this section shall be made publicly available by the Authority through such means as it considers appropriate in the circumstances, except in the case of any information which the Authority considers to be confidential.
(4)
Where the Authority decides to hold a public meeting, it shall
(a)
give to the Minister and to each other party interested in an application or a regulation pending before the Authority not later than thirty days prior notice of the meeting;
(b)
publish the notice in the Gazette and in at least two newspapers of wide circulation in The Gambia to maximise the opportunity for

the attendance and participation in the meetings by members of the public who

(i)
are or may become subscribers of information and communications services, or
(ii)
are otherwise interested in the purpose of the meeting.

Keeping of

5. (1) The Authority shall keep records and store

records

documentation, as required, containing data on

(a)
operators and service providers, including broadcasting service providers;
(b)
users of assigned radio frequencies;
(c)
users of assigned numbers;
(d)
reference interconnection offers;
(e)
interconnection contracts established by operators having significant market power within the respective relevant markets on the basis of approved reference interconnection offers;
(f)
calculations of costs for universal service provision; and
(g)
such other data as the Authority may determine.
(2)
The Authority may also obtain data listed in this subsection (1) from other Government institutions and through direct computer or electronic links.
(3)
The Authority shall retain the data provided for under this section
(a)
for as long as the information and communications operator or provider
(i)
provides public communication services,
(ii)
has the right to use the radio frequency spectrum or the number, pursuant to this Act, and
(b)
in the form of an archive for additional five years after the retention under paragraph (a).

CHAPTER II REGULATION OF INFORMATION AND COMMUNICATIONS SERVICES AND SYSTEMS

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 II -AUTHORISATION OF INFORMATION AND COMMUNICATIONS SYSTEMS AND SERVICES

10. (1) Subject to the other provisions of this Act, a person shall not

(a)
establish, install, operate or maintain an information or communications system; or
(b)
provide an information and communications service or install information or communications apparatus,

in The Gambia without an authorization issued for that purpose in accordance with this Act and any other relevant legislation.

(2)
The Minister shall on the recommendation of the Authority, approve the classification of activities in the information and communications sectors into three categories requiring different levels of regulatory intervention authorizing information and communications market entry, namely
(a)
individual licence;
(b)
general authorization or class licence;
(c)
declaration leading to issuance of a permit.
(3)
Notwithstanding the provisions of subsection (2), in order to promote the development of the information and communications sector in the region and to allow more choice to consumers, the Minister shall, in consultation with the Authority, decide that certain activities, services or networks should be exempt from the obligation to hold an individual licence and be subject to the authorization, declaration or even the open entry regime.
(4)
Without prejudice to subsection (3), where the provision of an information and communications network or service is not yet covered by a licence or general authorization and where that network or service cannot be provided without an authorization, the Minister shall, no later than six weeks after having been notified of the request
(a)
adopt provisional market entry conditions allowing the company to commence providing the service; or
(b)
deny the request, providing the company concerned with the reasons for the decision.
(5)
Where provisional market entry conditions have been adopted pursuant to subsection (4), the Minister shall adopt, as soon as possible, definitive conditions governing the issue of a licence for the network or service, or agree that the network or

Private networks

service be provided without authorization, or provide the reasons for refusal to do either.

(6) An authorisation under subsection (2)

(a)
does not relieve the person from the requirement of any other licence, permit or other authorisation, or from any obligation arising from any other law;
(b)
is subject to the access and interconnection provisions and obligations of Part VI of this Chapter.

11. (1) Private networks may be established and operated by any individual or legal entity, subject to obtaining an authorization referred to in section 10, issued by the Authority.

(2)
The Authority shall specify, case by case, the conditions under which private networks may be connected to a public information and communications network, but shall in no case permit the exchange of communications between persons or entities other than those for whom the use of the network is reserved.
(3)
Notwithstanding the provisions of subsection
(1)
a private information and communications system belonging to The Gambia Armed Forces, security agency, or the police, is exempt from regulation under this Act if it remains a private information and communications system and does not connect with or into a public information and communications system.
(4)
The allocation and assignment of private information and communications system referred to in subsection (3) shall be regulated by the Minister.
(5)
The Authority shall monitor the use of frequencies by all private networks and enforce compliance with the relevant regulations.

Alternative

12. (1) Operators of alternative infrastructures may

infrastructure

lease or cede to a public network operator or to an

Exclusivity

Exclusive licence for rural telephony service

Licence and other fees

applicant for a licence within the framework of an invitation to tender, whilst respecting laws and regulations relating to the occupation of the public domain, any excess capacity which they possess after having deployed the infrastructures intended for their own needs rights-of-way they possess.

(2) Any transfer or leasing agreement of alternative networks must be communicated to the Authority for information.

  1. Except where a licence had been issued and exclusivity rights vested in a licensee prior to the enactment of this Act, the Minister shall not include in a licence or the terms of a licence an exclusivity period or monopoly to the licence.
    1. (1) Notwithstanding the provisions of section 13
      1. the Minister may issue an exclusive licence for the provision of a telephony service in a rural area that did not have that service at the time of the submission of an application for a licence or the initiation of an invitation to tender; and
      2. the Authority may require interconnection for the service.

(2) A licence issued under this section shall be limited to the provision of telephony service in a village of five thousand or fewer permanent residents with an information and communication service penetration rate of one per cent or less.

15. (1) The Minister may, from time to time, in consultation with the Authority, approve the level of licence and frequency fees payable in respect of licences or any other authorisation under this Act.

(2) Fees shall be paid in full before any authorisation is granted, or numbers, or frequencies, assigned as follows

(a) application fees shall be paid directly to the

Administrative charges and regulatory fees

Authority;

(b) initial and annual fees for licences and
frequency shall be paid to The Gambia
Revenue Authority;
(c)
numbering and naming fees shall be paid to the Authority;
(d)
annual regulatory fees shall be paid to the Authority; and
(e)
type approval and renewal fees to the Authority.
(3)
Any charges or fees referred to this Act shall be objectively justified, transparent, non-discriminatory and proportionate in relation to their intended purpose and shall take into account the objectives as set out in this Act.
(4)
Where a licence requires that payment of a licence or an annual regulatory fee be based on a percentage of a licensee’s gross annual revenues, the base for calculating a licensee’s gross annual revenues shall include
(a)
payments from subscribers and other users; and
(b)
other customer accounts.
(5)
The Authority shall set out a uniform schedule of application fees for each particular licence under this Act, taking into account the cost and time required by the Authority to research, process and grant or deny applications.

16. (1) Regulatory fees imposed by the Authority under section 15 shall be aimed at covering

(a) the administrative costs of regulating the information and communication sector and shall in total cover only the administrative costs which will be incurred in the management, control of the sector and

Application procedures

enforcement of obligations of authorized network operators and service providers;

(b)
costs for international cooperation, harmonization and standardization, market analysis, monitoring compliance and other market control; and
(c)
costs for any regulatory work involving compliance with this Act or any other law and the preparation and enforcement of any decisions issued by or under this Act, or under any regional or international directives, decisions or Acts.
(2)
The Authority shall, in relation to the imposition of regulatory fees provided for under this Act, publish an annual overview of its administrative costs and of the total sum of charges collected.
(3)
The Authority shall, in the case of administrative charges and regulatory fees imposed on an annual basis, make appropriate repayments or compensation in the case of overcharging, or impose additional charges in the case of undercharging of a person to whom a charge is imposed in the light of any difference between the total sum of regulatory fees collected and regulatory costs incurred.

17. (1) An application for an authorisation under this Act shall be in accordance with the procedures set out in the Regulatory Authority Act, this Act and regulations made under them.

(2) Licences shall be granted according to open, non-discriminatory and transparent procedures, and, for the purpose, all candidates shall be subject to the same procedures unless there is an objective reason for subjecting them to different treatment.

Applications

18. An operator or applicant requiring the allocation

requiring the

of frequencies shall, if-

allocation of frequencies Publication of information on application procedures

Publication of applications for licences

(a)
practicable, incorporate its request for specific allocation of the frequencies required in its application to provide information and communications services or establish an information and communications system;
(b)
not practicable or if requested by the Authority, apply separately for a frequency authorization and in the application, refer to the information and communications service or system, to which the frequencies relate.

19. (1) Notwithstanding the provisions of section 18, the Authority shall ensure that information on application procedures and information to be submitted by applicants is published in such a way as to make it readily available to interested parties, including at least two newspapers with wide circulation in The Gambia and the Gazette.

(2) Notwithstanding the provisions of section 17, the Authority shall ensure that the following information is published and made available to the public

(a)
all criteria for the issue of licences, general authorizations and declarations;
(b)
the period of time normally required to reach
a decision concerning a request for a licence or general authorization and;
(c)
the terms and conditions governing

activities subject to individual licences, general authorizations, declarations or open entry.

20. (1) On receipt of an application for a licence under this Act, the Authority shall ensure that the application is published in such manner as may determine, including at least two newspapers with wide circulation in The Gambia, giving such details as appropriate and in accordance with confidentiality requirements to enable a person wishing

Application evaluation process

Reasons for denial

to comment or object to do so.

(2) A comment or objection shall be submitted to the Authority in accordance with the procedures prescribed by regulations made under this Act.

21. (1) The Authority shall evaluate the application together with any comments, objections and responses and conduct any investigations and require any information it deems necessary to enable it to take a decision which best serves the public interest.

(2)
The Authority shall, within four months from the date of submission of an application for an individual licence, complete its evaluation and render a written statement advising the Minister to grant or deny the application.
(3)
The Authority shall, within one month from the date of submission of an application for a class licence, complete its evaluation and grant or deny the application.
(4)
The Authority shall, in the case of a denial, include in the statement the reasons for the denial.
(5)
The Authority may, with the approval of the Minister, by regulations, set out the conditions under which the period specified in subsections (2) and (3) may be extended, but shall not, in any case, extend the evaluation period beyond two months.

22. (1) Without prejudice to section 21, a company providing the information that may be required from it to prove that it meets the conditions established and published by the Authority in conformity with the relevant provisions of this Act shall qualify to obtain an individual or class licence.

(2) If a company seeking to obtain an individual licence or class licence fails to provide the required information under subsection (1), the Authority may recommend to the Minister to refuse to grant the individual licence.

Limit on number of licences

(3)
In addition to the provisions of subsection (2), the Authority shall recommend to the Minister to refuse to grant an individual licence to install or operate an information and communications system or to provide a information and communications service, if
(a)
it is contrary to the provisions of this Act or any other law, or with any international commitment undertaken or in the process of being undertaken by The Gambia;
(b)
it poses a danger or nuisance to the public or damage to any property, or obstructs or interferes with any lawfully operated information and communications system or service;
(c)
there are reasonable grounds to believe that the applicant is not a fit and proper person to hold the licence applied for based on proof that a particular applicants’ authorization or licence has been suspended or revoked, even outside The Gambia; or
(d)
there is adequate evidence that demonstrates that the applicant is not in a position, because of the financial and other specific circumstances of the applicant, to comply with the provisions of this Act, the Regulatory Authority Act or any regulations made under any of them or with the conditions of the licence if granted.
(4)
The Minister shall, in denying an application, furnish through the Authority to the applicant in writing the reasons to support his or her decision.
(5)
The applicant may apply to the Minister for a review of his or her decision under this section.

23. (1)The Minister shall only limit the number of individual licences, for any category of information and communications service and for the establishment or operation of information and communications networks or systems, to the extent required to guarantee the efficient use of the radio-frequency spectrum or for the time required to allow sufficient numbers to be allocated.

(2)
Where the Minister intends to limit the number of individual licences granted in conformity with subsection (1), he or she shall
(a)
give due consideration to the necessity to maximize advantages for users and facilitate the development of competition;
(b)
give interested parties the opportunity to express their opinion on any planned limitation;
(c)
consult the Authority prior to reaching a decision;
(d)
publish the decision to limit the number of individual licences and the justification of the decision;
(e)
regularly re-examine the limit imposed;
(f)
launch a public tender for the issue of licences.
(3)
Where the number of licences is limited, the Minister, in consultation with the Authority, shall establish in terms of reference for each call for tender for an individual licence
(a)
the conditions for the establishment of the network;
(b)
the conditions for the provision of the service;
(c)
the coverage area of the service and implementation schedule;
(d)
the radio frequencies and blocks of numbers

Non-transferability of licences

allocated along with rights of way on public domain;

(e)
the minimum professional and technical qualifications together with the financial guarantees required of applicants;
(f)
the conditions for operating the service, including those relating to the provision of universal service and the principle of equality of treatment of users;
(g)
arrangements for payment of the fees;
(h)
the duration of the licence's validity and conditions for its renewal, and
(i)
the criteria for the selection of the winner.
(4)
The call for tender shall establish the conditions of access and interconnection to public information and communication networks as well as the conditions for leasing components of those networks as required for the establishment of the new network or for provision of the service covered by the call for tender and the licence, in that case, carries with it the right of access to interconnection or the leasing required.
(5)
The bid shall be awarded to the applicant whose offer is deemed to be the best vis-à-vis all requirements in the terms of reference.
(6)
The decision on the bid and the process and evaluation shall be published in a public report.

24. (1) An individual or class licence shall not be transferred or assigned by a licensee without a prior written notice to the Authority and, thereafter, the prior consent in writing of the Authority granted under section 25 of the Regulatory Authority Act.

(2) The Authority may refuse a transfer with reasons provided in writing if the transfer is not in the public interest.

Term and renewal of licences

Modification of licences

(3)
Where the licensee is a body corporate or other legal person, a change in ownership of the licence of fifty per cent or more, or a change in the control of management is considered to be a transfer of the licence, and shall be subject to the prior consent of the Authority.
(4)
The Authority shall consult the Minister before granting or refusing approval or giving consent, as the case may be, under this section.

25. (1) Unless sooner terminated as specified in the Regulatory Authority Act and this Act, any relevant law or otherwise stated in the licence, an individual or class licence granted pursuant to this Act shall be for such period as is specified in it and may be renewed.

(2)
An application for the renewal of a licence shall be made to the Authority
(a)
in the case of a licence that has a term of ten years or more, not later than twelve months before the expiration of the licence; and
(b)
in any other case, not later than six months before the expiration of the licence being renewed.
(3)
A licensee who fails to apply to renew its licence or whose application for renewal is rejected by the Authority shall, immediately on the expiration of the term of the licence, cease to operate the information and communications system or provide the information and communications service for which the licence was granted.

26. (1) Subject to this Act and any regulations made under it, the Minister shall, on the advice of the Authority, modify a licence granted under this Act if the modification is permissible under the terms of the licence or is required in the public interest.

Revocation and suspension of licences

(2)
The Minister shall not modify a licence unless it has given at least ninety working days written notice to the licensee of the modification
(a)
stating that the Minister proposes to make the modification; and
(b)
setting out the reasons for the modification.
(3)
The notice shall also be published in the manner specified by the licence.
(4)
The Authority shall in all cases consider any representation or objection that is made to it as a result of the notice before making the modification.

27. (1) The Minister may, on the advice of the Authority, revoke any authorization issued under this Act, either in whole or in part, for any of the following reasons

(a)
if the authorization was granted on the basis of information which was incomplete, misleading, incorrect in any material respect or against public interest;
(b)
if the authorized provider fails to act on the licence by failing to provide the authorized information and communications service or install the authorized information and communications system for a period exceeding eighteen months from the date of issuance of the authorization or where the period was extended in the authorization, at the expiration of that period;
(c)
if the information and communications service or system once commercially launched is suspended, without a force majeure, for a consecutive period exceeding three months, unless the Authority extends the period for a good and valid reason;
(d)
if the authorized provider fails to remedy a
material or repeated breach in accordance with section 29 and applicable regulations; or
(e)
the happening of any event or circumstance which, in accordance with the terms of the authorization or with any regulations made under this Act, authorizes the Minister to revoke the authorization.
(2)
The revocation of an authorization does not relieve the authorized provider of any liability arising from anything done prior to the revocation.
(3)
The Minister may suspend an authorization , where he or she is satisfied that
(a)
the holder has failed to start operations within six months of the issue of the authorization or within such additional period as may be allowed by the Minister;
(b)
the licensee has ceased his or her operation under the authorization;
(c)
the holder has given the Authority information which is false or misleading in a material particular;
(d)
the holder has failed to comply with the terms of its licence or any other provisions specified in this Act;
(e)
it is in the public interest to do so.
(4)
A decision taken under subsection (3) shall
(a)
be notified in writing to the licensee; and
(b)
have effect for not more than thirty days.

Termination of

28. A licence granted pursuant this Act shall

authorisation

terminate, and cease to be valid, in whole or in part, as the case may require, on

Principles of licence conditions

Procedures governing licences

(a)
the expiration of the term specified in the licence, if not otherwise renewed pursuant to section 25;
(b)
the happening of an event or circumstance which according to the terms of the licence causes it to terminate;
(c)
a renunciation of the licence by the operator;
(d)
the revocation of the licence;
(e)
the insolvency, liquidation or bankruptcy of the licensee, or an assignment for the benefit of creditors; or
(f)
the licence being cancelled or revoked under section 29 or 31, as the case may be.

PART III -TERMS AND CONDITIONS OF INFORM-ATION AND COMMUNICATIONS LICENCES

  1. A condition imposed with regard to the operation of electronic communication networks or the provision of electronic communication services must be non discriminatory, proportionate, and trans-parent and must be justified in relation to the targeted network or service.
    1. (1) The procedures by which information and communications licences are governed are
      1. this Act, and any other regulation issued by the Authority;
      2. sector policies; and
      3. prevailing market conditions.

(2) An authorized entity shall, in addition to complying with the provisions of this Act, regulations made under this Act and the terms

Applicability of licence conditions

and conditions of the licence, abide by any directive issued by the Authority for the purpose of

(a)
ensuring that the capacity, quantity and features of the system are sufficient for providing and maintaining an efficient information and communications system or service;
(b)
ensuring that the system is sufficient for and compatible with such international information and communications services as the Authority may specify;
(c)
making provision for the security of the system and of any of its extension; and
(d)
ensuring the implementation of open network architecture or provisions.
(3)
The Authority shall regularly review and refine the general regime for the regulation of the information and communications sector to ensure its sufficiency and completeness, taking into consideration market trends and developments.
(4)
Information and communications licensees are subject to the regulatory regime to the same extent that it applies to all public information and communications operators authorized to provide public information and communications networks and services in The Gambia.

31. (1) The holders of authorisations shall have a set of basic rights and obligations, and those rights and obligations shall be applicable to all operators or service providers holding an authorisation, but, the ability of authorized entities to avail themselves of those rights may be conditional on their being able to meet physical or technical requirements.

(2) Certain conditions shall be applicable only if the licensee has a significant market power further to a decision taken by the Authority as provided for by this Act, and where the Authority intends to make a finding of dominance, statutory consultation

Licence conditions

process, as provided for in this Act shall be followed.

(3)
Certain conditions in regard to environmental, town planning and regional development considerations may be applicable to authorized entities and in particular conditions relating to the granting of access to public or private property and to the co-location or sharing of facilities.
(4)
Where operators wish to have access to scarce resources, such as, radio frequency spectrum, numbers or land, the Authority shall, subject to consultation with the Minister, retain the right to put in place additional conditions and those conditions that relate to scarce resources shall be activated where an operator gains access to the resources.
(5)
Conditions attached to information and communications licences are without prejudice to
(a)
any other legal condition not specific to the information and communications sectors; and
(b)
measures taken by Government pursuant to

public interest requirements recognized under any legislation and regulations, and relating, in particular, to public morality, public safety and security, including criminal investigations, and public order.

32. (1) Without limiting the general nature of conditions that may be attached to an information and communications licence pursuant to this Act, the regulations under this Act and other legislation in force, conditions which may be attached to an information and communications licence shall relate to

(a)
conditions aimed at ensuring compliance with relevant essential requirements;
(b)
conditions relating to the provision of information reasonably requested with a view to verifying compliance with applicable conditions and for statistical purposes;
(c)
accessibility to end users of numbers in the national numbering plan;
(d)
payment of fees;
(e)
conditions relating to the protection of users and subscribers, particularly in regard to
(i)
standard contracts concluded with subscribers,
(ii)
detailed and accurate invoicing, and

(iii) the availability of a dispute resolution procedure;

(f)
the publication of service access conditions, including tariffs, quality and availability, and adequate notification whenever such conditions are amended;
(g)
specific rules concerning personal data and privacy protection;
(h)
specific rules and conditions relating to
consumer protection;
(h)
restrictions in regard to the transmission of illegal content and of harmful content relating to internet and television broadcasting

activities;

(j)
conditions aimed at preventing anti-competitive behaviour in information and communications markets, and in particular measures designed to ensure that tariffs are not discriminatory and do not distort competition;
(k)
communication of information contained in

Specific conditions

customer databases for the purpose of providing universal directory services;

(l)
provision of emergency services;
(m)
special arrangements for users with
disabilities;
(n)
conditions pertaining to the access obligations applicable to companies providing information and communications networks or services and network interconnection and service interoperability;
(o)
conditions relating to the registration of Subscriber Identity Module Cards by service providers;
(p)
conditions aimed at facilitating legal interception by competent national authorities;

(q terms of use during major disasters to ensure communications between emergency services, the authorities and public broadcasting services; and

(r) measures aimed at limiting exposure of the public to electromagnetic fields generated by electronic communication networks,

33. (1) Notwithstanding the provisions of this section, specific conditions may be attached to information and communications licences as regards the regulation of market power, the use of scarce resources, including radio frequency spectrum, numbers and rights of way, or the provision of broadcasting services.

(2)
Notwithstanding the provisions of this Act, conditions which may be applied to operators having significant market power as defined in section 49 and determined by the Authority following the procedures determined in this Act, include the obligation to
(a)
relinquish access rights to a mobile network
to service operators;
(b)
lease out part of a local loop and equipment facilities;
(c)
rent a leased line;
(d)
lease out an antenna site and part of a cable duct;
(e)
publish delivery terms and tariff information;
(f)
lease out part of a terrestrial mass communications or broadcasting network;
(g)
organize national and international roaming;
(h)
use cost-oriented pricing based on cost calculations;
(i)
provide pre-selection for international calls in a mobile network;
(j)
use appropriate methodology of cost-
accounting;
(k)
keep separate accounts on its activities;
(l)
interconnect an information and communications network to another information and communications network; and
(m)
provide universal service.
(3)
Specific conditions relating to the allocation of numbers that may be attached to licences where justified and with due respect for the principle of proportionality include
(a)
designation of the service for which the number is used, including any requirements in regard to the provision of that service;
(b)
effective and efficient use of numbers;
(c)
requirements in regard to number
portability;
(d)
obligation to provide subscribers listed in public directories with information;
(e)
transfer of usage rights at the initiative of the rights-holder, and conditions applicable to the transfer;
(f)
charges for usage rights; and
(g)
obligations under relevant international agreements relating to number usage.
(4)
Specific conditions relating to the use and effective management of radio-frequency spectrum that may be attached to information and communications licences where justified and with due respect for the principle of proportionality, include
(a)
designation of the service or type of network or technology for which spectrum usage rights have been granted, including, where applicable, exclusive use of a frequency for the transmission of content or specific audiovisual services;
(b)
effective and efficient use of frequencies, including, where appropriate, requirements in regard to coverage;
(c)
technical and operational conditions necessary to avoid harmful interference and limit exposure of the public to electromagnetic fields, where those conditions differ from those laid down in this Act;
(d)
transfer of radio-frequency spectrum usage rights at the initiative of the rights-holder, and conditions applicable to the transfer;
(e)
fees for the use of spectrum;
(f)
commitments made during the competitive or comparative selection process by the

Emergency service obligation

Services for the disabled

Rights of licensees

company having obtained usage rights; and

(g) obligations under relevant international agreements relating to frequency usage.

34. (1) An operator of public information and communications system or service shall

(a)
make available to its subscribers free access to an emergency police, fire service, and medical number, preferably of three digits; and
(b)
publish the number continuously in its invoices, in its advertisements, on its premises, and, in the Gazette, within one month of its availability.

(2) The operator shall coordinate the number with the agency of the Government of The Gambia responsible for the maintenance of personnel who route emergency police, fire service and medical calls.

  1. An operator of a public telecommunications system or service which installs or operates pay public telephones, shall ensure that the pay public telephones have facilities for audio assistance for the hearing impaired and dialling assistance for the visually impaired.
    1. Licensees which provide publicly available information and communications networks and services shall enjoy the right
      1. to negotiate interconnection with, and obtain access or interconnection from other providers of publicly available communications networks and services, under the conditions of and in accordance with this Act; and
      2. the opportunity to be designated as a provider of certain elements of universal service or to cover different parts of The

Gambia in accordance with the provisions of this Act.

Rights to use land

No. 2 of 1992

37. (1) Licensees providing publicly available information and communications networks have the right to

(a)
request, pursuant to general law, the exprpriation and the constitution of public easements indispensable to the installation, protection and maintenance of the respective systems, equipment and further resources; and
(b)
use the public domain, in conditions of equality, for the implanting, crossing or passing over necessary for the installation of systems, equipment and further resources.
(2)
Subject to any permission required under the State Lands Act, 1991 and any law regulating the control and development of land, licensees providing information and communications networks and services available to the public
(a)
may cut or remove any tree or its branch which is in contact with any apparatus, post or works erected, placed or constructed; and
(b)
are ensured the right to request the use of the public domain as necessary for the installation of systems, equipment and further resources.
(3)
If publicly accessible information and communications services cannot be provided by installing information and communications infrastructure on public land or by way of sharing existing information and communications facilities, and no agreement has been concluded between the public utility or the owner, (manager or user) of the private property and the service provider, in accordance with the procedure, laid down in this section, the electronic communication
infrastructure may be installed primarily in the facilities of the public utility, or secondarily, on the private land referred to in this section as “the affected property”.
(4)
At the request of the licensee, the Authority may adopt a decision concerning an easement or other right of use, restricting the use of the affected property by its owner due to public interest in publicly accessible information and communications services provided that the licensee proves that
(a)
it has exerted its best reasonable efforts to come to an agreement with the owner of the affected property;
(b)
the installation of the information and communications infrastructure on public land or by way of sharing existing information and communications facilities or in the case of private property, in the facilities owned by other public utilities, is not practicable due to reasons of environmental protection, public health, public safety, construction issues, or the special features of the information and communications network.
(5)
The request submitted pursuant to subsection
(4)
may also be evaluated in the course of the individual licensing procedures for the carrier licences.
(6)
The Authority shall notify the owner of the affected property of the commencement of the procedure.
(7)
The procedures for granting the rights referred to in this section shall be transparent, publicly available and applied without discrimination and without delay and the attached conditions to those rights shall follow the principles of transparency and non-discrimination.
(8)
The official decision shall specify

Sharing of property and facilities

(a)
the restriction required in the interest of the publicly accessible information and communications service;
(b)
the content of the easement or other right of use, especially, the right of the authorized representative of the information and communications service provider to enter the affected property for the inspection, maintenance and required emergency repair of the information and communications structure and equipment;
(c)
the location and method of installation of the information and communications structure; and
(d)
the technical parameters of the information and communications equipment that may be installed in the information and communications structure, as well as the relevant limit values stipulated by legal regulations pertaining to environmental protection, public health, public safety and construction.

38. (1) Licensees shall promote among themselves the conclusion of agreements aimed at sharing property or facilities, either installed or to be in-stalled, which agreements shall be notified to the Authority.

(2)
Where there are no viable alternatives to the installation of new infrastructure due to environmental protection, public health, public security, cultural heritage, country planning and town and country landscapes preservation, without prejudice to the powers of local authorities, the Authority may, following a consultation period of interested parties, determine the sharing of facilities, including ducts, masts and other installations in the property, whether or not their owners are undertakings providing information and communications networks and services.
(3)
Determinations made pursuant to the subsection (2) may include rules for apportioning costs.
(4)
In the event of sharing, the Authority may define measures that place restrictions on the operation of the facilities to be installed, namely, a limit on the maximum levels of transmission power.

Compensation

39. (1) With the exception of State-owned public areas and the owner of the information and communications structure affected by the shared use of facilities, the owner of the affected property

(a)
is entitled to a compensation corresponding to the extent of the restriction; and
(b)
may also exercise his or her rights under civil law.
(2)
After the completion of the construction, the licensee installing the information and communications structure shall restore the original condition of the environment, and the owner of the other public utility facility, private property or municipal property used for the installation of the information and communications structure may agree with the contractor in an improved restoration of the area.
(3)
The information and communications structure shall be installed on the affected property so that it interferes with the exercise of the owners of adjoining properties to the least possible extent, within the limit values stipulated by legal regulations pertaining to environmental protection, public health, public safety and construction, as allowed by the circumstances.
(4)
Any dispute concerning the amount and application of compensation under subsection (1) shall be determined by the Authority whose determination on the matter shall be final.
(5)
The right granted for the use of the public

Authorisations

Monitoring of licence compliance

domain under 37 (1)(b) confirm may not be extinguished prior to the expiry of the period for which the right was granted, except where justified and without prejudice to applicable provisions in respect of compensation.

40. (1) The conditions of information and communications authorisations shall clearly state on the rights and obligations of the holder.

(2) Each authorisation shall include provisions to facilitate enforcement processes and access, when deemed necessary, to the licence or licensee’s documents, provided that privacy and confidentiality are respected.

41. (1) A licensee shall allow the Authority, and every person authorized by it, including an inspector, such access to any premises, installation, files, accounting records and other repository of information under the control of the licensee as may be reasonably required by the Authority to

(a)
carry out its responsibilities under this Act; and
(b)
ensure compliance with the provisions of this Act, regulations made under it and the terms of the licence.
(2)
The Authority shall, with a written notice to the Minister, give a licensee fifteen days notice of its intention to act under this section, giving reasons for the request.
(3)
Subsection (2) does not apply
(a)
where the access to an installation is urgently necessary to prevent or remove an interference with an information and communications service or system or damage to persons or property; or
(b)
if in the opinion of the Authority, the access is required to investigate a complaint that

has been reasonably verified by the Authority.

Provision of information

42. Electronic communication networks operators and electronic communication service providers are obliged to make available to the Authority all information, including financial data, which are necessary for the Authority and the Ministry to exercise their respective competences, including, without any limitation

(a)
description of functional and technical parameters of public information and communications networks services, the manner of their realization, provision of compatible interfaces and applicable electro-magnetic compatibility and their influence on the safety of people and environment;
(b)
payment of fees;
(c)
compliance with the provisions of this Acts, and any regulations or provisions adopted pursuant to it;
(d)
compliance with decisions where:
(i)
a complaint has been received,
(ii)
the Authority has a reason to believe that the provisions of this Act have been violated, or

(iii) the Authority conducts an investigation regarding the compliance of operators of the electronic networks and providers of the information and communications services in accordance with this Act; and

(e) assessment of request for granting rights to use scarce resources pursuant to this Act.

43. (1) Where an operator wishes the Authority to

Confidential information

treat as confidential any information provided by the operator on the grounds that

(a)
it contains information revealing the commercial strategy of the operator; or
(b)
the disclosure of the information would unduly interfere with the right to privacy of the operator, it shall submit the information under seal and request the Authority to treat it as confidential.
(2)
The Authority shall comply with a request under subsection (1) unless it considers the confidentiality requested to be impracticable in the light of the requirements and the fundamental principles of this Act or any regulations made under it or in violation of any other law, in which case, the information requested and the reasons for requesting the information, together with the reasons for claiming confidentiality, shall be submitted to the Board for final decision.
(3)
The Authority or Government shall not disclose the content of the information unless or until confidentiality is denied, and applicable administrative appeal process is exhausted with the same result.

Sanctions

44. (1) The Authority shall undertake, when deemed necessary, reasonable and appropriate methods to enforce the terms and conditions of a licensee’s activities in accordance with procedures set out in this Act, the Regulatory Authority Act, any relevant law and regulations made under them.

(2)
The Authority may apply sanctions, including, in the following cases of infringements:
(a)
non-compliance with provisions of legal regulations, regulatory decisions, notifications, regulatory licences, or standard contract conditions;
(b)
illegal use of radio frequency spectrum, or if used without authorization or in contra
diction with a licence;
(c)
placing electronic communication equipment or any other electric devices causing interference or any other side effects on the market, or their distribution or operation in violation of regulations;
(d)
failure to comply with any notification requirement; and
(e)
failure to comply or inadequate compliance with disclosure obligations.
(3)
If a service provider refuses to comply with the Authority’s notice, the Authority has powers to take the following measures in accordance with this Act and specific other legislation
(a)
order the service provider to pay the costs of the proceeding if found guilty in an official supervisory proceeding the Authority has conducted;
(b)
impose a fine in an amount prescribed by this Act;
(c)
order the information and communications operator or service provider to disclose the information prescribed by the Authority;
(d)
advise the Minister on the revoca-tion and suspension of the licence as provided for in section 27;
(e)
order the service provider to credit or repay extra charges where it fails to comply with the obligations; or
(f)
apply other sanctions prescribed by regulations.
(4)
The Authority shall give the licensee concerned a reasonable notice of its intent to act and a reasonable opportunity to respond and, except in the case of repeated breaches by a licensee, in

Harmful interference

which case, the Authority may immediately take the appropriate measures, the Authority shall allow reasonable period prescribed by regulations for the licensee to remedy the breach.

(5)
If the licensee remedies the breach within the time prescribed by regulations, the Authority shall record the remedy and permit the licensee to continue operating but the Authority may within two months from its initial intervention revoke or modify its decision as it deems it appropriate and shall give reasons for its decision.
(6)
In the event of any serious or repeated violation of obligations, if the sanctions under this Article did not achieve sufficient results, the Authority shall notify the Minister of the violation and the Minister
(a)
shall suspend or prohibit the related information and communications activities; or
(b)
may suspend or withdraw the individual information and communications or radio communications licences.
(7)
The Authority shall publish its decisions and may publish them regardless of any request filed for the judicial review of the decision.
(8)
Where an appeal has been lodged against a decision that has already been published, it too shall be published together with the ruling adopted in the judicial review proceeding.

45. (1) Where there is harmful interference between an information and communications system using radio frequencies and another Information and communications system, the Authority may take immediate action, including the giving of directives to remedy the breach.

(2) A licensee affected by subsection (1) shall be given twenty-one days opportunity to state its views and propose remedies to the harmful interference, before the Authority takes a final decision.

PART IV ENSURING FAIR COMPETITION

Fair competition No. 4 of 2007

Market analysis

46. (1) Notwithstanding the Competition Act, 2007, but without prejudice to section 13 of the Regulatory Authority Act, the Minister and the Authority shall, in the performance of their duties under this Act and regulations made under it, promote, develop and enforce fair competition and equality of treatment among all licensees in any business or service relating to telecom-munication information and communications.

(2) An act of unfair competition includes

(a)
an abuse by a licensee, either independently or with others, of a significant market power which unfairly excludes or limits competition between the licensee and any other person;
(b)
entering into an agreement or engaging in a concerted practice with any other party, which unfairly prevents, restricts or distorts competition;
(c)
the perpetuation of anti-competitive changes in the market structure in and, in particular, anti-competitive mergers and acquisitions in the communications sector; and
(d)
any other practice or act which is prohibited under any other written law.

47. (1) The Authority is charged with

(a)
defining the relevant markets of products and services within the information and communications sectors, including the relevant geographic markets, in accordance with the principles of this Act; and
(b)
carrying out an analysis of the relevant markets.

Relevant markets

(2)
The Authority has the right to conduct a market analysis
(a)
at the request of the Minister;
(b)
at the request of interested operators; or
(c)
on its own initiative.
(3)
The Authority also has the right to complete only parts of the market analysis procedure where it considers for justified reasons that it is not feasible to complete the whole procedure.
(4)
The Authority shall endeavour to complete the market analysis within the shortest period of time possible and in any case within four months after the decision to initiate a market analysis was taken.
(5)
The Authority may extend the period stipulated in subsection (4) for a maximum of three times and in each case for a maximum period of three months.
(6)
The market analysis shall be completed by a decision of the Authority and shall indicate the results of every completed stage of the market analysis.
(7)
The Authority shall make publicly available the list of relevant markets for which undertakings having significant market power as defined in subsection (1) have been identified and the list of undertakings having significant market power as well as the obligations imposed on them.
(8)
The analysis of the market shall be reviewed if a new definition of the markets is established or where the Authority deems that there are grounds for the review.

48. (1) Within the scope of market analysis, the Authority shall determine whether or not a relevant market is effectively competitive, for the purposes

No. 4 of 2007

of imposing, maintaining, amending or suppressing obligations set forth in the present Act

(2)
The Authority shall determine the relevant markets by
(a)
collecting information about each identified market so as to measure the extent of “significant market power;
(b)
consulting the concerned information and communications market players regarding market relevance for the purpose of analyzing those markets;
(c)
seeking the advice of the Competition Commission established under the Competition Act 2007;
(d)
defining the criteria to measure the
significant market power; and
(e)
consulting with the concerned information and communications market players about obligations to be imposed on operators having significant market power.
(3)
When conducting a market analysis, deciding whether an operator has significant market power and imposing obligations on it, the Authority shall
(a)
take account of the relevant provisions of international treaties and agreements; and
(b)
ensure, within the scope of its competence, compliance with and implementation of those treaties and agreements in The Gambia.
(4)
Where the Authority determines that a relevant market is not effectively competitive, it shall identify undertakings having significant market power in that market and impose appropriate and specific regulatory obligations, or maintain or amend the obligations where they already exist.

Determination of significant market power

(5) If the analysis shows the market to be competitive, the Authority shall abolish any existing obligations.

49. (1) For the purposes of this Act, an operator is deemed to have significant market power if, either individually or jointly with others, it enjoys a position equivalent to dominance, that is, a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and consumers.

(2)
The Authority may consider that two or more operators have joint significant market power if, even in the absence of structural or other links between them, they operate in a market whose structure is considered to be conducive to coordinated effects.
(3)
The Authority shall, in its assessment, use criteria based on specific market characteristics, in particular in terms of market concentration and transparency, giving weight, to the following factors
(a)
fully developed market;
(b)
stagnant or moderate growth on the demand side;
(c)
low elasticity of demand;
(d)
homogeneous products;
(e)
similar cost structures;
(f)
similar market shares;
(g)
lack of technical innovation or fully developed technology;
(h)
absence of excess capacity;
(i)
high barriers to entry;
(j)
lack of countervailing buying power;
(k)
lack of potential competition;
(l)
various kinds of informal or other links

Imposition of obligations on undertakings having significant market power

between the undertakings concerned;

(m)
retaliatory mechanisms; and
(n)
lack or reduced scope for price competition.

(4) Where an operator has significant market power in a specific market, it may also be deemed to have significant market power in an adjacent market, where the links between the two markets are such as to allow the market power held in one market to be leveraged into the other market, thereby strengthening the market power of the undertaking.

50. (1) The Authority has the right to impose obligations on operators having significant market power on the relevant market, taking account of their appropriateness in each specific case and setting the starting moment in time for the fulfillment of those obligations.

(2)
The obligations imposed on operators by the Authority must be reasonable, based on the nature of the problem identified, proportionate and justified in the light of the principles and objectives of the regulation of information and communications activities.
(3)
Where it is established on the basis of a relevant market analysis that the market characteristics do not justify the imposition of obligations referred to in this section or that there are no operators having significant market power in the market, the Authority shall
(a)
not impose, in accordance with the procedure and conditions set out in this Act, the obligations referred to in this Act; and
(b)
withdraw the obligations, if any, imposed on the operators having significant market

Cost accounting obligation

power.

(4)
When withdrawing obligations, the Authority may, by a reasoned decision, set the final date for their implementation.
(5)
After having conducted a repeated market analysis, the Authority may amend the imposed obligations by applying the necessary changes according to the provisions of this section concerning the imposition of obligations.

51. (1)The Authority shall require operators having significant market power to establish cost accountting for the purposes of regulation.

(2)
Cost accounting must show separate accounts, in accordance with international best practices.
(3)
Costs relating to regulated and non-regulated activities are kept separate.
(4)
Cost accounting must be by activity-based costing.
(5)
The cost accounting system must be audited annually by an independent body appointed by the Authority, the costs of the audit to be borne by the operator having significant market power which allow the Authority to publish a cost nomenclature prior to submission of the reference interconnection offer for approval.
(6)
Pending the implementation of cost accounting, the interconnection rates shall be calculated on the basis of the following recommendations
(a)
using a regional benchmark;
(b)
using an existing cost calculation tool;
(c)
using, for an initial period of three years, a top-down model based on forward-looking historical costs, before moving to a model based on a long-run incremental costs, which gives the operator with a
an incentive for greater efficiency;
(d)
using marketing data for setting the appropriate rate of return based on the cost of capital;
(e)
using the hybrid capital asset pricing model incorporating the country risk and correction coefficient for calculating the cost of equity,

Local loop

52. The Authority shall ensure that-

unbundling

(a)
new entrants are authorized to access the local loop on the basis of a preestablished schedule;
(b)
new entrants commit, in their respective proposals, to install some minimum infrastructure capacity, whereas operators having significant market power commit to provide access to copper pairs to the new entrant as well as the possibility of colocation on its premises in order to facilitate unbundling;
(c)
the unbundling offer, including the list of services offered at the request of the Authority, shall be approved by the Authority;
(d)
the new entrant has access to the information needed for unbundling purposes and the information related to unbundling is exchanged electronically between operators and competitors;
(e)
a schedule for unbundling established with a view to liberalization of fixed communications, privileging unbundling with shared line access initially; and
(f)
guidelines are provided on use of the “scissors test” in order to compare retail prices and unbundling.

Carrier selection

Infrastructure sharing

53. (1)The Authority shall ensure that carrier selection is introduced in the call-by-call form, as a minimum, in order to establish effective competition and allow consumers to choose their local-loop operator freely and have access to the services of an alternative operator.

(2)
The selection possibility shall be offered by all operators having significant market power who must be invited to undertake the technical changes that are necessary to adapt their automatic exchanges so as to be able to offer, in the initial phase, call-by-call selection service which shall be included in the reference interconnect offer.
(3)
The Authority shall assign prefixes to operators who fall within the category of carriers and take decisions on
(a)
type of carrier selection;
(b)
operators eligible to act as carriers;
(c)
operators subject to the obligation to offer carrier selection;
(d)
types of calls carried;
(e)
problems involved in carrier selection such as invoicing and calling line identification; and
(f)
unfair competition issues, such as, "slamming".

54. (1) The Authority shall encourage infrastructure sharing and ensure that sharing between the operators of public communication networks takes place under conditions of fairness, nondiscrimination and equality of access.

(2) The Authority, in consultation with other stakeholders, shall elaborate a procedure for handling relations between the operators of public networks in the matter of the conditions and the sharing of

Number portability

infrastructure, in particular lead-times and access to the information needed to put it into place.

(3)
The Authority shall encourage infrastructure sharing between the operator concerning, in particular, posts, ducts and elevated points to be made available mutually on a commercial basis, where there is limited access to posts, ducts and elevated points resources through natural or structural obstacles.
(4)
The Authority shall
(a)
encourage access to alternative infrastructure on the basis of commercial negotiations, in order to foster and entrench competition as rapidly as possible; and
(b)
ensure that the access is provided under conditions of fairness, non-discrimination and equality of access.

55. (1)The Authority shall conduct market studies to assess consumers' portability needs and identify what categories of consumers are likely to request a portability service.

(2)
Where a need has been clearly identified, the regulations shall be made to allow consumers to keep their telephone numbers when they change operators.
(3)
The Authority shall
(a)
ensure that dialogue takes place between the market players and the Authority, and that the numbering plan is also revised so as to adapt it to the requirements of number portability;
(b)
establish tariff and technical conditions; and
(c)
provide information on national roaming contracts, in consultation with the market players.

International roaming

Fixed-to-mobile call termination

56. The Authority shall

(a)
ensure the widest possible compatibility between mobile systems in terms of roaming, and take it into consideration when awarding mobile licences;
(b)
study roaming prices charged in the region;
(c)
consult with the market players concerned with a view to arriving at reasonable tariffs to allow the greatest possible number of roaming users in the region to utilize the networks under the best price and quality conditions;
(d)
identify operators engaged in applying prohibitive prices;
(e)
consult with the Competition Commission;
(f)
allow prepaid subscribers to use roaming at reasonable tariffs;
(g)
inform customers about roaming charges in a clear, detailed and transparent manner; and
(h)
draw the necessary conclusions from international practice.

57. The Authority shall examine

(a)
interconnection and call termination charges on mobile and fixed networks;
(b)
charges and tariff structures, retail and inter-connection prices and the sharing of
(c)
possible adjustments to the tariff structures of retail and interconnection prices;
revenues between originating and
terminating operators for fixed-to-mobile
calls;

Evolution of the regulatory framework to promote the development of the internet

Right to Interconnection

(d)
the relevance of the interconnection
market;
(e)
the relevance of the mobile termination market;
(f)
the identification of operators having significant market power in those markets and implementation of the necessary measures, to promote smooth development of the information and communications and the process of liberalization of the fixed network in particular.

58. The Authority shall ensure that

(a)
through unbundling, operators are able to offer "triple play" type services (high-speed internet, voice and television);
(b)
all the alternative operators' equipment necessary for the implementation of local loop access can be co-located;
(c)
activities which will promote development of the wholesale market and hence rapid expansion of the internet in The Gambia are encouraged;
(d)
prior to the liberalization of fixed services, negotiations are held with the incumbent operator on the inclusion of standard offers, namely, flat-rate access, via non-geographical free phone numbers, access via non-geographical paying numbers.

PART V -ACCESS AND INTERCONNECTION

59. (1) A licensee has the right and, when requested by another licensee, the obligation, to negotiate the interconnection of its information and communications system or service, with the information and communications system or service of another licensee, in objective, transparent and non-discriminatory conditions, in order to provide end-to-end connectivity and inter-operation ability of services for all customers at fair and reasonable prices.

(2)
The request for interconnection shall not be refused if it is reasonable in terms of the requesting licensee’s requirements on one hand and the operator's capacity to meet it on the other.
(3)
A refusal to interconnect shall be substantiated and notified to the requesting licensees and to the Authority.
(4)
Notwithstanding the terms and conditions of an interconnection agreement, a party to the interconnection contract shall not at any time and in any circumstance disconnect or discontinue interconnection to an interconnecting party without the prior written approval of the Authority.
(5)
Except where prohibited by the interconnecting operator’s licence or by this Act, a network controller shall allow an interconnecting operator to route calls within The Gambia or to international destinations.

Principle

60. An interconnection agreement shall not, directly or indirectly

(a)
preclude or frustrate the exercise by any person of the rights or privileges afforded under a licence, this Act and regulations made under this Act;
(b)
impose any penalty, obligation or disadvantage on any person for exercising a right under a licence, this Act and the regulations made under this Act;
(c)
prohibit a person from providing an interconnected service which that person is able lawfully to provide; or
(d)
frustrate the provision by a person of an information and communications system or

Terms and conditions of interconnection agreements

Non-Discrimination

service that the person is able to provide lawfully.

61. (1) The terms and conditions of an interconnection agreement shall promote increased

public and efficient use of information and
communications systems and services and
facilities.
(2)
An interconnection agreement shall facilitate end-to-end connectivity by ensuring that a call originated on the information and communications system of an interconnecting operator can be terminated at any point on the information and communications system of the network controller on non-discriminatory basis.
(3)
The transmission of calls across and within information and communications systems shall be seamless to both the calling and called parties.
(4)
The procedure for forecasting, ordering and provisioning interconnection shall be efficient and occur within a reasonable time frame.
(5)
The facilities or systems used for interconnection shall be provided in sufficient capacity to enable the efficient transfer of signals between interconnected telecommunication systems.
(6)
A service acquired as part of an interconnection facility may be used for any lawful purpose.

62. (1) Interconnection shall be provided on a nondiscriminatory basis in similar conditions and for similar circumstances.

(2) A network controller shall ensure that

(a)
the rates charged do not vary on the basis of the class of customers to be served;
(b)
it provides an interconnecting operator with interconnection facilities and information under the same conditions and in the same

Legal regime of interconnection agreement

quality that it affords to its own subsidiaries, affiliates, or other similarly situated information and communications service providers;

(c)
it avails to an interconnecting operator all necessary information and specifications related to interconnection; and
(d)
customers of an interconnecting operator receive treatment that is no less favourable than the treatment which it affords to its own customers or the customers of its subsidiaries, affiliates, or other similarly situated information and communications service providers.

63. (1) Interconnection shall be the subject of a private legal agreement, commonly called the interconnection contract, between the two parties in question.

(2)
The interconnection agreement shall specify, subject to this Act the technical and financial conditions pertaining to the interconnection and on signature, shall be registered with the Authority.
(3)
Notwithstanding the provisions of subsections
(1)
and (2), the Authority may intervene and make binding rulings at its instance or at the instance of either or both parties to the interconnection agreement if
(a)
the Authority determines that the contract or any of its provision is inconsistent with the provisions of this Act or regulations made under this Act;
(b)
the parties fail to reach a consensus on specific issues or a delay in reaching a consensus; or
(c)
the Authority considers it in the public interest for it to so intervene at its own instance and without any invitation from either or both parties to the interconnection

Good faith negotiations

contract.

(4)
The parties shall furnish the Authority with any additional information that the Authority may require in respect of an interconnection agreement.
(5)
The Authority may, on evaluating the terms and conditions and the charges set out in the interconnection agreement require the parties to revise the contract if, in the Authority’s opinion, the agreement is inconsistent with, this Act, regulations made under this Act, the interconnection guidelines, or the integrity of the public network.

64. (1) The parties to an interconnection agreement shall negotiate in good faith and use their reasonable endeavours to resolve disputes as to the form and subject of an interconnection contract.

(2)
A network controller shall
(a)
provide network information to an interconnecting operator on receipt of a written request; and
(b)
give an interconnecting operator’s request for interconnection reasonable priority in his or her dealing with customer orders.
(3)
Interconnecting operators obtaining information from other operators prior to, during, or following, the access or interconnection agreement negotiation process shall
(a)
use that information solely for the purposes foreseen when it was communicated; and
(b)
respect the confidentiality of information transmitted or retained.
(4)
Any information received under subsection (3) shall not be communicated to other parties, in particular, other services, subsidiaries or partners for which they could constitute a competitive advantage.

Content of

65. (1)Notwithstanding the provisions of section 63

interconnection

(1), interconnection agreements shall be in writing

agreements

and contain the following minimal elements

(a)
the date of entry into force, duration and arrangements for the modification, termination and renewal of the agreement;
(b)
notification procedures and the contact details of the authorized representatives of each party for each field of competence;
(c)
the scope and specification of interconnection;
(d)
a description of the services provided by each party and of access to all ancillary or supplementary services or access to and use of premises or land necessary to support interconnection;
(e)
maintenance of end-to-end quality of service and other service levels;
(f)
charges for interconnection on an incremental cost basis;
(g)
billing and settlement procedures;
(h)
ordering, forecasting, provisioning and testing procedures;
(i)
points of interconnection or co-location;
(j)
the amount of, or the forecast procedures to be used to determine, interconnection capacity to be provided;
(k)
transmission of call line identity;
(l)
provisions for network information on an open network architecture basis;
(m)
provisions for information regarding system modernization or rationalization;

Interconnection charges

(n)
technical specifications and standards;
(o)
inter-operability testing, traffic management and measurement, and system maintenance;
(p)
information handling and confidentiality pro-visions;
(q)
duration for and renegotiation of the agreement;
(r)
formation of appropriate working groups to discuss matters relating to interconnection and to resolve any disputes;
(s)
rules for compensation in the case of failure by one of the parties; and
(t)
dispute settlement procedures mention, in the case of failure of negotiations between the parties, of mandatory recourse to the Authority.

(2) In the absence of a reference interconnection offer or for services not appearing in the reference interconnection offer, the applicable tariffs shall appear in an annex to the interconnection contract.

66. (1) Interconnection rates shall be

(a)
charged for each type of information and communications service and system for which interconnection is provided; and
(b)
computed, taking into account only those costs directly related to interconnection.
(2)
Interconnection charges shall be structured to match the pattern of underlying costs incurred, and to distinguish and separately price
(a)
fixed charges for the establishment and implementation of physical interconnection;
(b)
periodic rental charges for use of facilities, equipment and resources, including interconnect and switching capacity; and
(c)
variable charges for information and communications services and supplementary services.
(3)
Interconnection charges shall
(a)
be objective and sufficiently unbundled so that the interconnecting operator does not pay charges that are not directly related to incremental costs of the network controller in providing the interconnection;
(b)
be independently verifiable, fair and properly derived from underlying costs, built up from the cost of separately identifiable network elements; and
(c)
not be designed to facilitate cross-subsidies by a network controller of its network or other services.
(4)
Interconnection charges shall not exceed the retail charges for the provision of the equivalent services or facilities to be provided by the interconnection.
(5)
An interconnecting operator may acquire services from a network controller at any retail price offered by the network controller, without prejudice to any right to acquire those same or similar services under an interconnection contract.

Technical

67. (1) An interconnecting agreement shall provide

standards

for adequate capacity and service levels and reasonable remedies for any failure to meet those capacities and service levels.

(2) The parties to an interconnection agreement shall comply with all the relevant standards of the Union and such other technical standards as the Authority may, from time to time, impose.

Calling line identity

Points of interconnection

68. (1) A calling line identity and all the necessary signalling data shall be passed between interconnecting parties in accordance with standards issued by the Authority.

(2) A dispute in connection with the collection and delivery of calling line identity shall be submitted to the Authority for determination.

69. (1) A point of interconnection shall be established and maintained at any technically feasible point as agreed by the parties and the quality of apparatus and facilities shall not prejudice the interconnecting operator.

(2)
An interconnecting operator shall provide sufficient details to the network controller relating to point of interconnection to
(a)
enable the network controller to assess the system conditioning that may be required; and
(b)
estimate the costs of establishing the points of interconnection.
(3)
A point of interconnection shall be established as soon as practicable following a request, but, in any case, not later than the period specified in the agreement from the date of the request.
(4)
A network controller is responsible for the cost of
(a)
building and maintaining its ports, data fill and switching capacity to support the interconnection; and
(b)
transport of all material from its origination to points of interconnection.
(5)
Where parties providing interconnect services to each other are information and communications system providers, they may mutually agree on the point of interconnection and share the costs of

establishing the point of interconnection.

Requests for new forms of interconnect-ion

70. (1) A request by an interconnecting operator for a new form of interconnection shall be in writing and provide the network controller with information about the form of interconnection, the approximate date the interconnection is required and an estimate of the capacity required.

(2)
The interconnecting operator shall forward a copy of the request for interconnection to the Authority.
(3)
The network controller shall, within fifteen days of receipt of the request for interconnection, inform the interconnecting operator in writing
(a)
of its ability to supply the form of interconnection requested and its schedule of supply; and
(b)
whether it is able to do so within the time frame requested by the interconnection operator.
(4)
If a dispute in negotiations arises, either the network controller or the interconnection operator may request the Authority’s assistance in resolving the dispute through mediation.
(5)
The Authority shall resolve disputes brought to it within one hundred and twenty days of its receipt of the referral or of receipt of information requested from the parties following the referral.
(6)
The network controller shall, where it has informed the interconnecting operator that it is able to provide interconnection, ensure that the system conditioning and provisioning procedures required to provide the interconnection are undertaken within forty-five days from the date of notification.
(7)
A network controller shall provide ninety days written notice to an interconnecting operator of any planned changes to its information and commu

Confidentiality of information

Review of interconnection agreements

nications system that may have material impact on the interconnecting operator.

71. (1) A party who receives information in relation to interconnection from another party that is designated by the party as confidential shall keep the information confidential and may disclose it only to

(a)
employees, agents, or advisers, who need to have that information for the purpose of the provision of or advising on interconnection;
(b)
persons to whom the disclosure is authorized by that other party, where the disclosure is authorized or required by law; and
(c)
the Authority.

(2) A confidential information related to

(a)
interconnection of a party received by another party; or
(b)
business information generated by the information and communications system of a party as a result of interconnection,

shall be used solely for the purpose of providing interconnection, and shall not be disclosed to any person involved in the development or provision of retail services of the other party or its subsidiaries or affiliates.

(3) The confidentiality provision of an interconnection agreement shall not prevent or frustrate the public disclosure by the Authority of a provision of the agreement in the public interest.

72. (1) The Authority may review all interconnection agreements entered into or proposed to be entered into between authorized providers.

(2)
The Authority may require information from either the interconnecting operator or from the network controller, or from both of them.
(3)
The Authority shall, in reviewing interconnection agreements, ensure that
(a)
the agreements comply with the applicable regulatory and legal texts, in particular those provisions relating to interconnection and the terms of reference of operators; and
(b)
the provisions of the agreement and contain no discriminatory measures liable to ad-vantage or disadvantage one of the parties vis-à-vis other operators or service providers.
(4)
Notwithstanding the provisions of subsection (2), the Authority shall in particular take into account
(a)
the need to ensure satisfactory end-to-end information and communications services for users;
(b)
the objective of stimulating a competitive market;
(c)
the need to promote co-operation with counterparts in other countries;
(d)
the principles of non-discrimination, including equal access and proportionality;
(e)
the need to maintain and develop universal access;
(f)
the need to ensure fair and incremental cost oriented access charges; and
(g)
the dominance of the operator requesting interconnection from whom interconnection is requested.

Modification of interconnection agreements

Reference interconnection offer

73. (1)When indispensable in order to guarantee fair competition, non-discrimination between operators and the interoperability of networks and services, the Authority may request the parties to modify the interconnection agreement.

(2)
In the case of a request for modification, the Authority shall send the parties concerned its requests for modification, duly substantiated.
(3)
The parties concerned have a period of one month, as from the date of the request for modification, to amend the interconnection agreement.
(4)
The Authority may, on its own or at the request of one of the parties, set a deadline for signature of the agreement, after which they must intervene to bring the negotiations to a conclusion so that negotiations do not become a barrier to the entry of new operators.
(5)
Operators who so request under subsection (4) shall be allowed to consult, in the offices of the Authority, in the manner that the Authority shall decide and respecting normal business confidentiality, the interconnection agreements concluded by operators.
(6)
Where the Authority considers it urgent to take action to safeguard competition and protect users' interests, it may request that interconnection between the two networks be provided immediately, pending conclusion of the agreement.
(7)
Where the Authority has not formulated a request for modification within three months as from receipt of the interconnection agreement, requests for modification shall cover only those amendments aimed at guaranteeing that each party receives no worse treatment in terms of nondiscrimination as compared to those offered in more recent agreements signed by the other party.

74. (1) The Authority shall publish a clear and trans-parent procedure governing approval of the reference interconnection offer of operators having significant market power.

(2)
The Authority is entitled to request the operator having significant market power to add or modify the services set out in their offers, when those additions or modifications are justified for compliance with the principles of non-discrimination and cost-orientation of interconnection.
(3)
The offers must be as detailed as possible in order to facilitate and smooth interconnection contract negotiations.
(4)
The operator having significant market power is required to publish annually a reference interconnection offer, reflecting its price list and the technical services offered which shall contain at least the following services
(a)
services for the routing of switched traffic (call termination and origination);
(b)
leased lines;
(c)
interconnection links;
(d)
supplementary services and implementation arrangements for them;
(e)
description of all points of interconnection and conditions of access to them, for the purposes of physical co-location;
(f)
comprehensive description of proposed interconnection interfaces, including the signaling protocol and possibly the encryption methods used for the interfaces; and
(g)
technical and tariff conditions governing the selection of carrier and portability.
(5)
The Authority may impose transparency obligations in line with international best practices.

Publication of a reference interconnect offer

Relevant cost orientation

(6)
The Authority shall also ensure that any reference interconnect offer on the part of operators includes a list of the subscriber-serving exchanges that are not available for interconnection for valid technical or security reasons, along with the provisional timing to open such subscriber exchanges to interconnection.
(7)
Where the forwarding of expected operator traffic to or from subscribers connected to exchanges on the list mentioned in subsection (6) is justified, the Authority shall ensure that the operator is required, at the request of the Authority, to establish a transitional offer for that exchange.
(8)
Transitional offer under subsection (7) shall allow the requesting operator to define a fee schedule that reflects the costs which, in the absence of technical access restrictions, would have been incurred for switching communications to or from, first, the subscribers connected to that exchange, and second, the subscribers who would have been accessible without the need for routing through a higher-echelon exchange.
  1. The reference interconnect offers approved by the Authority shall be made available on the web-sites of operators having significant market power and shall be accessible by a web link available on the Authority's website.
  2. (1) Operators having significant market power shall respect the principle of relevant cost orientation, that is, the costs of network components or the management structures of the operator effectively involved in the provision of interconnection.

(2) The relevant costs shall include

(a) general network costs, that is, costs relating to network components used by the operator both for services for its own customers and for interconnection services; and

Monitoring of interconnection tariffs

Communication of information to the Authority

(b) costs specific to interconnection services, that is, costs directly incurred solely by those services.

(3)
Relevant costs must take account of long-term economic efficiency, in particular, the investments required for network renewal and expansion with a view to sustain quality of service and incorporate the cost of return on capital invested.
(4)
Non-relevant costs include costs specific to services other than interconnection.

77. (1) Operators having significant market power shall attach to the draft reference interconnection offer submitted to the Authority a detailed presentation justifying the main tariffs proposed and once the harmonized method for calculating interconnection costs has been adopted, the operators shall use that method to provide the requested justification.

(2)
The Authority shall ensure that the methods and data used are valid, and as required, it shall request the operator having significant market power to adjust its calculations to rectify errors identified.
(3)
If an operator having significant market power fails to provide the justifications required, the Authority may, in the operator’s stead evaluate the costs based on the information available to it.
(4)
The Authority shall ensure that tariff setting for access and interconnection in so far as the operators having significant market power are concerned is cost-oriented and, as appropriate, that the fees payable by consumers are not dissuasive.

78. (1) Operators having significant market power shall communicate to the Authority, at least once a year, the basic information required for checking the calculation of interconnection costs.

(2)
The Authority shall prepare and communicate to operators a detailed list of that information and regularly update the list, taking account, inter alia, of steps taken to harmonize the calculation methods.
(3)
Operators having significant market power are required to allow the duly authorized staff or agents of the Authority to have access to their installations and information system in order to check the validity of the information received.
(4)
The Authority shall respect the confidentiality of non-public information to which it has access within the framework of auditing the interconnection costs in order to eliminate any anti-competitive practices by the operators having significant market power.

Co-location

79. (1) The Authority shall ensure that there is an obligation for operators who have to provide colocation that a co-location offer presenting no barrier to the entry of competitors, is included in the reference interconnect offer for network interconnection and in the unbundling offer for unbundling.

(2)
The Authority shall ensure that
(a)
where physical co-location is impossible for some valid reason, such as lack of space, an alternative co-location offer must be made by the operators having significant market power;
(b)
it has a map of self-contained routing switches that are open to interconnection and are available for competitors’ colocation.
(3)
For purpose of subsection (2), a working group comprising the Authority, the incumbent operator and alternative operators shall, in a fully transparent manner, examine the problems of co-location and propose different solutions in order to solve problems that might arise.
(4)
The Authority shall prevent the creation of any entry barriers inherent to co-location and provide solutions to conflicts relating to it as rapidly as possible.
(5)
The Authority shall establish the minimal set of conditions that must be fulfilled in any co-location offer, after consultation with the operators of public telecommunication networks.
(6)
The conditions established under subsection
(5)
may lead to the specification, in every colocation offer, of the following
(a)
information on co-location sites;
(b)
precise location of the operator’s sites suitable for co-location;
(c)
publication or notification of an updated list of sites;
(d)
indications as to the availability of alternative solutions in the event that physical space for co-location is not available;
(e)
information on what types of co-location are available, and on the availability of electric systems and cooling equipment on the sites, as well as the rules governing sublease of the co-location premises;
(g)
information on equipment characteristics and any restrictions on equipment that can be accepted for co-location;
(g)
measures that operators offering colocation must take to ensure the security of their premises and to identify and resolve problems;
(h)
conditions under which competing ope
(f) indications on the time required to
conduct feasibility studies for any co
location request;

Interconnec tion disputes

rator personnel may enter the premises; and

(i) conditions under which competing operators and the Authority may inspect a site where physical co-location is impossible, or a site where co-location has been refused on the grounds of lack of capacity.

80. (1) Disputes relating to refusal to interconnect, interconnection agreements and conditions of access shall be submitted to the Authority in the form of a petition from the petitioner requesting the Authority to resolve the dispute.

(2)
The petition shall contain
(a)
a detailed statement of the matters and facts at issue;
(b)
a statement of attempts made to resolve the dispute;
(c)
a copy of the interconnection agreement, if any; and
(d)
any other information as the petitioner deems relevant or the Authority may require.
(3)
The party against whom the petition is filed shall be given the opportunity to respond to the petition.
(4)
The Authority shall in considering a petition take such steps as are necessary to enable it to decide the dispute, and may establish, by way of written notice to the parties, all dates and deadlines not established.
(5)
The Authority shall decide on a petition under this section within a period of two months of its submission, which period may be extended to four months when additional investigations and expert opinions are required.
(6)
The decision of the Authority shall be substantiated, and shall specify the equitable conditions, both technical and financial, under which the interconnection is to be effected and matters remaining in dispute shall be brought before the competent jurisdictions.
(7)
In the case of serious and blatant breach of the rules governing the information and communication sector, the Authority may, after inviting the parties to submit their remarks, order appropriate provisional measures to be taken to ensure the continued functioning of networks and services.

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.

CHAPTER III INFORMATION SOCIETY ISSUES

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.

PART IV -PROTECTION OF CHILDREN

174. (1) A person who

(a)
takes or permits to be taken or to make, an indecent photograph or pseudo-photograph of a child;
(b)
distributes or shows an indecent photograph or a pseudo-photograph;
(c)
has in his or her possession an indecent photograph or pseudo-photographs, with a view to it being distributed or shown by himself or herself or any other person; or
(d)
publishes or causes to be published an advertisement likely to be understood as conveying that the advertiser distributes or shows the indecent photograph or a pseudo-photograph, or intends to do so,

commits an offence and liable on conviction to imprisonment for life.

(2) Where a person is charged with an offence under subsection (1)(b) or (c), it is a defence for

the person to prove that he or she

(a)
had reasonable grounds for distributing or showing the photograph or pseudo-photograph or having them in his or her possession; and
(b)
had not himself or herself seen the photograph or pseudo-photograph and did not know, or had any cause to suspect, it to be indecent.

(3) Where

(a)
the impression conveyed by the pseudo-photograph is that the person shown is a child; or
(b)
the predominant impression conveyed is that the person shown is a child, notwithstanding that some of the physical characteristics shown are those of an adult,

the pseudo-photograph shall be treated for all purposes of this Act as showing a child.

(4)
The Court before which a person is convicted of an offence under this section may, in addition to any penalty imposed, order
(a)
the forfeiture of any apparatus, article or thing which is the subject matter of the offence or is used in connection with the commission of the offence; or
(b)
that the material subject matter of the offence be no longer stored on and made available through the computer system, or that the material be deleted.
(5)
An offence under this section shall be considered to be an extraditable crime for which extradition may be granted or obtained.

Deletion order

175. A Judge may, on application by an investigatory authority, and being satisfied that a

Sphere of application

computer system or any other information and communication technologies medium contains indecent photograph of children, order that such data be

(a)
no longer stored on and made available through the computer system or any other medium; or
(b)
deleted or destroyed.

PART V -ELECTRONIC RECORDS AND ELECTRONIC SIGNATURES

176. (1) Subject to subsections (2) and (3), the provisions of this Part apply to electronic records and electronic signatures relating to a transaction or an automated transaction.

(2)
The provisions of this Part do not apply to any enactment requiring writing or signatures in writing in
(a)
the creation or execution of a will;
(b)
a negotiable instrument;
(c)
a power of attorney;
(d)
a contract for the sale or other disposition of immovable property, or any interest in the property;
(e)
the conveyance of immovable property or the transfer of any interest in immovable property; or
(f)
a document of title; or such other document or instrument as may be prescribed.
(3)
This Part is subject to provision in any agreement between the parties involved in creating, generating, sending, receiving, storing or otherwise processing or using electronic records.

177. (1) Information is not without legal force and

Legal recogni

tion of data messages

Incorporation by reference

Requirement for writing

Other requirements

effect merely on the grounds that it is wholly or partly in the form of a data message.

(2) Information incorporated into an agreement and that is not in the public domain is regarded as having been incorporated into a data message if the information is

(a)
referred to in a way in which a reasonable person would have noticed the reference to it and incorporation of it; and
(b)
accessible in a form in which it may be read, stored and retrieved by the other party, whether electronically or as a computer printout as long as the information is reasonably capable of being reduced to electronic form by the party incorporating it.
  1. Information shall not be denied legal effect, validity or enforceability solely on the grounds that it is not contained in the data message purporting to give rise to the legal effect, but is merely referred to in that data message.
  2. Where an enactment requires any information or record to be in writing, that requirement shall be satisfied by an electronic record where the information contained in it is accessible so as to be usable for subsequent reference.
  3. (1) A requirement in a law for multiple copies of a document to be submitted to a single addressee at the same time is satisfied by the submission of a single data message that is capable of being reproduced by that addressee.

(2) An expression in a law, whether used as a noun or verb, including the terms "document", "record", "file", "submit", "lodge", "deliver", "issue", "publish", "write in", "print" or words or expressions of similar effect, shall be interpreted so as to include or permit the form, format or action in relation to a data message unless otherwise

Retention of information

provided for in this Act.

(3)
Where a seal is required by law to be affixed to a document and the law does not prescribe the method or form by which the document may be sealed by electronic means, that requirement is met if the document indicates that it is required to be under seal and it includes the advanced electronic signature of the person by whom it is required to be sealed.
(4)
Where a law requires or permits a person to send a document or information by registered or certified post or similar service, that requirement is met if an electronic copy of the document or information is sent to a service provider authorized by the Authority, is registered by the service provider and sent by that service provider to the electronic address provided by the sender.

181. (1) Where a rule of law requires that certain documents, records or information be retained, that requirement is satisfied by retaining them in the form of electronic records, if the following conditions are satisfied

(a)
the information contained in them remains accessible so as to be usable for subsequent reference;
(b)
the electronic record is retained in the format in which it was originally generated, sent or received, or in a format which can be demonstrated to represent accurately the information originally generated, sent or received;
(c)
such information, if any, as enables the identification of the origin and destination of an electronic record and the date and time when it was sent or received, is retained; and
(d)
the consent of the department of the Government, organ of State or the statutory body, which has supervision over the

Retention of information in original form

requirement for the retention of such records, has been obtained.

(2)
An obligation to retain documents, records or information in accordance with subsection (1)(c) does not extend to any information necessarily and automatically generated solely for the purpose of enabling a record to be sent or received.
(3)
A person may satisfy the requirement referred to in subsection (1) by using the services of any other person, if the conditions in subsection (1)(a) to (d) are complied with.
(4)
Nothing in this section
(a)
applies to any rule of law which expressly provides for the retention of documents, records or information in the form of electronic records;
(b)
precludes any department of the Government, organ of State or a statutory corporation from specifying additional requirements for the retention of electronic records that are subject to the jurisdiction of the Ministry or other organ of State or statutory body.

182. (1) Where the law requires information to be presented or retained in its original form, that requirement is met by electronic record if

(a)
there exists a reliable assurance as to the integrity of the information from the time when it was first generated in its final form, as an electronic message or otherwise; and
(b)
where it is required that information be presented, that information is capable of being displayed to the person to whom it is to be presented.

(2) Subsection (1) applies whether the requirement in that subsection is in the form of an

Production of document or information

obligation or whether the law simply provides consequences for the information not being presented or retained in its original form.

(3) For the purposes of subsection (1)(a)

(a)
the criteria for assessing integrity are whether the information has remained complete and unaltered, except for
(i)
the addition of any endorsement; or
(ii)
any change which arises in the normal course of communication, storage and display; and
(b)
the standard of reliability required shall be assessed in the light of the purpose for which the information was generated and in the light of all the relevant circumstances.

183. (1) Where a law requires a person to produce a document or information, that requirement is met if the person produces, by means of a data message, an electronic form of that document or information, and if

(a)
considering all the relevant circumstances at the time that the data message was sent, the method of generating the electronic form of that document provided a reliable means of assuring the maintenance of the integrity of the information contained in that document; and
(b)
at the time the data message was sent, it was reasonable to expect that the information contained in it would be readily accessible so as to be usable for subsequent reference.

(2) For the purposes of subsection (1), the integrity of the information contained in a document is maintained if the information has remained complete and unaltered, except for

Expression of intent or other statement

Attribution of electronic record and signature

(a)
the addition of any endorsement; or
(b)
any immaterial change, which arises in the normal course of communication, storage or display.

184. As between the originator and the addressee of a data message, an expression of intent or other statement is not without legal force and effect merely on the grounds that it is

(a)
in the form of a data message; or
(b)
not evidenced by an electronic signature but by other means from which the person’s intent or other statement can be inferred.

185. (1) An electronic record or electronic signature shall be attributable to a person where it was the act of that person.

(2)
The act of a person referred to in subsection (1) may be shown in the manner set out in this section, which includes the proper application of any security procedure to determine the person to whom the electronic record or electronic signature is attri-butable.
(3)
An electronic record is deemed to be that of the originator where it was sent
(a)
by a person who had the authority to act on behalf of the originator in respect of that electronic record; or
(b)
by an information processing system programmed by or on behalf of the originator to operate automatically.
(4)
Subject to subsection (5), an addressee is entitled to regard an electronic record as being that of the originator and to act on that assumption where
(a)
in order to ascertain whether the electronic
record was that of the originator, the addressee properly applied a procedure previously agreed to by the originator for that purpose; or
(b)
the data message as received by the addressee resulted from the actions of a person whose relationship with the originator or with any agent of the originator enabled that person to gain access to a method used by the originator to identify an electronic record as its own.
(5)
Subsection (4) does not apply
(a)
from the time when the addressee has both received notice from the originator that the electronic record is not that of the originator, and had reasonable time to act accordingly;
(b)
in a case referred to in subsection (4)(b), at any time when the addressee knew or ought to have known, had it exercised reasonable care or used any agreed procedure, that the electronic record was not that of the originator; or
(c)
where, in all the circumstances of the case, there are reasonable grounds for the addressee to regard the electronic record as that of the originator or to act on that assumption.
(6)
Subject to subsection (7), where an electronic record is that of the originator or is deemed to be that of the originator, or where the addressee is entitled to act on that assumption, the addressee is entitled to regard the electronic record received as being what the originator intended to send, and to act on that assumption.
(7)
The addressee is not entitled to regard the electronic record received as being what the originator intended to send where the addressee knew or ought to have known, had the addressee

Effect of change or error

exercised reasonable care or used any agreed procedure, that the transmission resulted in an error in the electronic record as received.

(8) The addressee is entitled to regard each electronic record received as a separate electronic record and to act on that assumption, except to the extent that the addressee duplicates another electronic record and the addressee knew or ought to have known, had the addressee exercised reasonable care or used any agreed procedure, that the electronic record was a duplicate.

186. If a change or error occurs in the transmission of an electronic record in a case where

(a)
the originator and the addressee have agreed to use an information security procedure in respect of the electronic record and one of them has conformed to the procedure, but the other has not, and the non-conforming person would have detected the change or error had he also conformed, the conforming person may avoid the effect of the change or erroneous electronic record;
(b)
an individual is either the originator or the addressee of the electronic record, he or she may avoid the effect of the electronic record if the error was made by the individual in dealing with the electronic agent of another person and the electronic agent did not provide an opportunity for the prevention or correction of the error and, at the time the individual learns of the error, the individual
(i)
promptly notifies the other person of the error and that he or she did not intend to be bound by the electronic record received by the other person,
(ii)
takes reasonable steps, including steps that conform to the other person's reasonable instructions, to return to the other person or, if instructed by the

Acknowledgement of receipt of electronic message

other person, to return the consideration received, if any, as a result of the erroneous electronic record, and

(iii) has not used or received any benefit or value from the consideration, if any, received from the other person; and

(c) if paragraph (a) or (b) does not apply, the change or error shall have the effect provided for in any contract between the originator and the addressee.

187. (1) Subsections (2), (3) and (4) apply where, on or before sending an electronic record, or by means of that electronic record, the originator has requested, or agreed with, the addressee that receipt of the electronic record be acknowledged by the addressee.

(2)
Where the originator has not agreed with the addressee that the acknowledgement be given in a particular form or by a particular method, an acknowledgement may be given by
(a)
a communication by the addressee to the originator, automated or otherwise; or
(b)
the conduct of the addressee, that is reasonably sufficient to indicate to the originator, that the electronic record has been received.
(3)
Where the originator has stated that an electronic record is conditional, on receipt by him or her of an acknowledgement, the record is presumed not to have been sent until an acknowledgment has been received by him or her.
(4)
Where the originator has not stated that the electronic record is conditional on receipt of the acknowledgement and the acknowledgement has not been received by the originator within the time specified or agreed or, if no time has been

specified or agreed, within a reasonable time, the originator

(a)
may give notice to the addressee
(i)
stating that no acknowledgement has been received and that the electronic record is to be treated as though it had never been sent, or
(ii)
specifying a reasonable time by which the acknowledgement must be received; and
(b)
if the acknowledgement is not received within the time specified in paragraph (a), may, on notice to the addressee
(i)
treat the electronic record as though it had never been sent, and
(ii)
exercise any other rights he or she may have.
(5)
Where the originator receives the addressee’s acknowledgement of receipt it may be presumed that the related electronic record has been received by the addressee but that presumption does not imply that the electronic record received corresponds to the electronic record as sent.
(6)
Where the addressee’s received acknowledgement states that the related electronic record met the technical requirements that the originator and the addressee have agreed should be met, it is presumed that the requirements have been met.
(7)
Except in so far as it relates to the sending or receipt of an electronic record, this section does not affect the legal or equitable consequences that may flow either from that electronic record or from the acknowledgement of its receipt.

Admissibility

188. (1) In any legal proceedings, the rules of

and evidential

evidence shall not be applied so as to deny the

weight of data messages

admissibility of a data message, in evidence

(a)
on the mere grounds that it is constituted by a data message; or
(b)
if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.
(2)
Information in the form of a data message shall be given due evidential weight.
(3)
In assessing the evidential weight of a data message, regard shall be had to
(a)
the reliability of the manner in which the data message was generated, stored or communicated;
(b)
the reliability of the manner in which the integrity of the data message was maintained;
(c)
the manner in which its originator was identified; and
(d)
any other relevant factor.
(4)
A data message made by a person in the ordinary course of business, or a copy or print out of or an extract from the data message certified to be correct by an officer in the service of the person, is on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self regulatory organization or any other law or the common law, admissible in evidence against any person and rebuttable proof of the facts contained in the record, copy, printout or extract.

Signature

189. (1) Where the law requires a signature of a person, that requirement is met in relation to a data message if

(a)
a method is used to identify that person and
to indicate that person’s approval of the information contained in the data message; and
(b)
that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated, in the light of all the circumstances, including any relevant agreement.

(2) Subsection (1) applies whether the requirement in that subsection is in the form of an obligation or whether the law simply provides consequences for the absence of a signature.

(3)An electronic signature is considered to be reliable for the purpose of satisfying the requirement referred to in subsection (1) if

(a)
the signature creation data are, within the context in which they are used, linked to the signatory and to no other person;
(b)
the signature creation data were, at the time of signing, under the control of the signatory and of no other person;
(c)
any alteration to the electronic signature, made after the time of signing, is detectable; and
(d)
where a purpose of the legal requirement for a signature is to provide assurance as to the integrity of the information to which it relates, any alteration made to that information after the time of signing is detectable.

(4) Subsection (3) does not limit the ability of a person to

(a) establish in any other way, for the purpose of satisfying the requirement referred to in subsection (1), the reliability of an electronic signature; or

Recognition of foreign certificates and electronic signatures

Notarisation, acknowledgeme nt and certification

(b) adduce evidence of the non-reliability of an electronic signature.

190. (1) In determining whether, or to what extent, a certificate or an electronic signature is legally effective, no regard shall be had to

(a)
the geographic location where the
certificate is issued or the electronic
signature created or used; or
(b)
the geographic location of the place of business of the issuer or signatory.
(2)
A certificate issued outside The Gambia has the same legal effect in The Gambia as a certificate issued in The Gambia if it offers a substantially equivalent level of reliability.
(3)
An electronic signature created or used outside The Gambia has the same legal effect in The Gambia as an electronic signature created or used in The Gambia if it offers a substantially equivalent level of reliability.
(4)
In determining whether a certificate or an electronic signature offers a substantially equivalent level of reliability for the purposes of subsection (2) or (3), regard shall be had to recognized inter-national standards and to any other relevant factors.
(5)
Where, notwithstanding subsections (2), (3) and (4), parties agree, as between themselves, to the use of certain types of electronic signatures or certificates, that agreement shall be recognized as sufficient for the purposes of cross-border recognition, unless that agreement would not be valid or effective under applicable law.

191. (1) Where a law requires a signature, statement or document to be notarized, acknowledged, verified or made under oath, that requirement is met if the advanced or secure electronic signature of the person authorized to perform those acts is attached to, incorporated in, or logically associated

Equal treatment of signature technologies

Conduct of a person relying on an electronic signature

with, the electronic signature or data message.

(2)
Where a law requires or permits a person to provide a certified copy of a document and the document exists in electronic form, that requirement is met if the person provides a print out certified to be a true reproduction of the document or information.
(3)
Where a law requires or permits a person to provide a certified copy of a document and the document exists in paper or other physical form, that requirement is met if an electronic copy of the document is certified to be a true copy of the document and the certification is confirmed by the use of an advanced electronic signature.
  1. Nothing in this Act, except where there is variation by agreement, shall be applied so as to exclude, restrict, or deprive of legal effect, any method of creating an electronic signature that satisfies the requirements for compliance with the requirement for a signature, or otherwise meets the requirements of applicable law.
    1. (1) Where signature creation data can be used to create a signature that has legal effect, each signatory shall
      1. exercise reasonable care to avoid unauthorized use of its signature creation data;
      2. without undue delay, utilize means made available by the certification service provider pursuant to the provisions of this Act, or otherwise use reasonable efforts, to notify a person who may reasonably be expected by the signatory to rely on or to provide services in support of the electronic signature if

(i) the signatory knows that the signature creation data have been compromised, or

Conduct of the certifica-tion service provider

(ii) the circumstances known to the signatory give rise to a substantial risk that the signature creation data may have been compromised;

(c) where a certificate is used to support the electronic signature, exercise reasonable care to ensure the accuracy and completeness of all material representations made by the signatory that are relevant to the certificate throughout its life cycle or that are to be included in the certificate.

(2) A signatory shall bear the legal consequences of his or her failure to satisfy the requirements of subsection (1).

194. (1) Where a certification service provider provides services to support an electronic signature that may be used for legal effect as a signature, that certification service provider shall

(a)
act in accordance with representations made by it with respect to its policies and practices;
(b)
exercise reasonable care to ensure the accuracy and completeness of all material representations made by it that are relevant to the certificate throughout its life cycle or that are included in the certificate;
(c)
provide reasonably accessible means that enable a relying party to ascertain from the certificate
(i)
the identity of the certification service provider,
(ii)
that the signatory that is identified in the certificate had control of the signature creation data at the time when the certificate was issued,

(iii) that signature creation data were valid at or before the time when the certificate was issued;

(d)
provide reasonably accessible means that enable a relying party to ascertain, where relevant, from the certificate or otherwise
(i)
the method used to identify the signatory,
(ii)
any limitation on the purpose or value for which the signature creation data or the certificate may be used,

(iii) that the signature creation data are valid and have not been compromised,

(iv)
any limitation on the scope or extent of liability stipulated by the certification service provider,
(v)
whether means exist for the signatory to give notice pursuant to this Act,
(vi)
whether a timely revocation service is offered;
(e)
where services under paragraph (d)(v) are offered, provide a means for a signatory to give notice pursuant to article of this Act and, where services under subsection (d)(vi) are offered, ensure the availability of a timely revocation service; and
(f)
utilize trustworthy systems, procedures and human resources in performing its services.

(2) A certification service provider shall bear the legal consequences of its failure to satisfy the requirements of subsection (1).

Trustworthiness

195. For the purposes of determining whether, or to what extent, any systems, procedures and human resources utilized by a certification service provider are trustworthy, regard may be had to the

Generating key pair

Acceptance of certificate

following factors

(a)
financial and human resources, including existence of assets;
(b)
quality of hardware and software systems;
(c)
procedures for processing of certificates and applications for certificates and retention of records;
(d)
availability of information to signatories identified in certificates and to potential relying parties;
(e)
regularity and extent of audit by an independent body; and
(f)
the existence of a declaration by the State, an accreditation body, or the certification service provider, regarding compliance with or existence of the factors set out in paragraphs (a) to (e).

196. (1) Subject to subsection (2), where a subscriber generates a key pair of which the public key is to be set out in a certificate and accepted by the subscriber, the subscriber shall generate the key pair using a trustworthy system.

(2) Subsection (1) does not apply to a subscriber who generates a key pair using a system approved by a certification authority

197. (1) A subscriber is deemed to have accepted a certificate where he or she

(a)
publishes or authorizes the publication of the certificate
(i)
to any other person, or
(ii)
in a repository, or
(b)
otherwise demonstrates approval of the certificate while knowing or having notice of

Control to private key

Initiating suspension or revocation

its contents.

(2) A subscriber referred to in a certificate shall, by accepting a certificate, certify to a person who may rely on the information contained in the certificate that

(a)
he or she rightfully holds the private key corresponding to the public key referred to in the certificate;
(b)
every representation made by him or her to the certification authority which is material to the information set out in the certificate are true; and
(c)
all information in the certificate that is within his or her knowledge is true.

198. (1) A subscriber identified in a certificate shall, on accepting a certificate

(a)
exercise reasonable care to retain control of the private key corresponding to the public key referred to in the certificate; and
(b)
prevent its disclosure to create his or her digital signature.

(2) Subsection (1) continues to apply during

(a)
the operational period of the certificate; and
(b)
any period of suspension of the certificate.

199. Where the private key corresponding to the public key referred to in a certificate has been compromised or otherwise becomes unreliable, a subscriber who has accepted the certificate shall forthwith request the relevant certification authority to suspend or revoke the certificate.

PART VI -ELECTRONIC TRANSACTIONS

Formation and

200. (1) In the context of contract formation, unless

validity of contracts

Automated transactions

otherwise agreed by the parties, an offer and acceptance of an offer may be expressed by means of electronic messages.

(2)
Where an electronic message is used in the formation of a contract, the contract shall not be denied validity or enforceability on the sole ground that a electronic message was used for the purpose.
(3)
Nothing in this section applies to any law that expressly provides a different method for the formation of a valid contract.

201. (1) In an automated transaction

(a)
an agreement may be formed where an electronic agent performs an action required by law for agreement formation;
(b)
an agreement may be formed where all parties to a transaction or either one of them uses an electronic agent;
(c)
a party using an electronic agent to form an agreement is, subject to paragraph (d), presumed to be bound by the terms of that agreement irrespective of whether that person reviewed the actions of the electronic agent or the terms of the agreement;
(d)
a party interacting with an electronic agent to form an agreement is not bound by the terms of the agreement unless those terms were capable of being reviewed by a natural person representing that party prior to agreement formation; and
(e)
no agreement is formed where a natural person interacts directly with the electronic agent of another person and has made a material error during the creation of a data message and
(i)
the electronic agent did not provide that

Variation by agreement between parties

Time of dispatch

person with an opportunity to prevent or correct the error,

(ii) that person notifies the other person of the error as soon as practicable after that person has learned of it,

(iii) that person takes reasonable steps, including steps that conform to the other person’s instructions to return any performance received, or, if instructed to do so, to destroy that performance, and

(iv) that person has not used or received any material benefit or value from any performance received from the other person.

202. As between parties involved in generating, sending, receiving, storing, or otherwise processing data messages, any provisions relating to the formation and validity of agreements for electronic transactions, the time and place of communications, dispatch and receipt, the expression of intent or other statement, the attribution of data messages to the originator, or the acknowledgement of receipt of data messages, may be varied by agreement.

203 (1) Unless otherwise agreed to between the originator and the addressee of a data message, if a data message enters a single information system outside the control of the originator, or the person who sent the message on behalf of the originator, the dispatch of the data message occurs when it enters that information system.

(2) If a data message enters successively two or more information systems outside the control of the originator, then unless otherwise agreed between the originator and the addressee of the data message, the dispatch of the data message occurs when it enters the first of those information systems.

204. (1) Unless otherwise agreed between the

Time of receipt Place of dispatch and receipt

originator and the addressee, the time of receipt of a data message is determined as follows

(a)
if the addressee has designated an information system for the purpose of receiving data messages, receipt occurs, at the time when the data message enters the designated information system;
(b)
if the data message is sent to an information system of the addressee that is not the designated information system, receipt occurs at the time when the data message is received by the addressee; or
(c)
if the addressee has not designated an information system, receipt occurs when the data message enters an information system of the addressee.

(2) Subsection (1) applies notwithstanding that the place where the information system is located may be different from the place where the data message is deemed to be received under that subsection.

205. (1) Unless otherwise agreed between the originator and addressee, a data message is deemed to be dispatched at the place where the originator has it’s place of business, and is deemed to be received at the place where the addressee has it’s place of business.

(2) For purposes of application of subsection (1) to a data message

(a)
if the originator or addressee has more than one place of business, one of those places has a closer relation to the underlying transaction it is assumed that the place of business is the originator’s or addressee’s only place of business;
(b)
if the originator or addressee has more than one place of business, but paragraph (a) does not apply, it is assumed that the

Information to be provided

originator’s or addressee’s principal place of business is the originator’s or addressee’s only place of business; and

(c) if the originator or addressee does not have a place of business, it is to be assumed the originator’s or addressee’s place of business is the place where the originator or addressee ordinarily resides.

(3) This section shall not apply in such circumstances as the Minister may by regulations prescribe.

206. (1) A supplier offering goods or services for sale, for hire, or for exchange, by way of an electronic transaction must make the following information available to consumers on the web site where the goods or services are offered

(a)
the supplier’s full name and legal status;
(b)
the supplier’s physical address and telephone number;
(c)
the supplier’s web site address and e-mail address;
(d)
membership of any self-regulatory or accreditation bodies to which that supplier belongs or subscribes and the contact details of that body;
(e)
any code of conduct to which the supplier subscribes and how the consumer may access that code of conduct electronically;
(f)
in the case of a legal person, its registration number, the names of its office bearers and its place of registration;
(g)
the physical address where the supplier will receive legal service of documents;
(h)
a sufficient description of the main characteristics of the goods or services
offered by the supplier to enable a consumer to make an informed decision on the proposed electronic transaction;
(j)
the manner of payment;
(k)
any terms of agreement, including any guarantees, that will apply to the transaction and how those terms may be accessed, stored and reproduced electronically by consumers;
(l)
the time within which the goods will be dispatched or delivered or within which the services will be rendered;
(m)
the manner and period within which consumers can access and maintain a full record of the transaction;
(n)
the return, exchange and refund policy of the supplier;
(o)
any alternative dispute resolution code to which the supplier subscribes and how the wording of that code may be accessed electronically by the consumer;
(p)
the security procedures and privacy policy of the supplier in respect of payment, payment information and personal information; and
(q)
where appropriate, the minimum duration of the agreement in the case of agreements for the supply of products or services to be performed on an ongoing basis or recurrently;
(i) the full price of the goods or services,
including transport costs, taxes and any
other fees or costs;
(2)
The supplier shall provide a consumer with an opportunity to
(a)
review the entire electronic transaction;
(b)
correct any mistakes; and
(c)
withdraw from the transaction, before finally placing any order.
(3)
If a supplier fails to comply with the provisions of subsection (1) or (2), the consumer may cancel the transaction within fourteen days of receiving the goods or services under the transaction.
(4)
If a transaction is cancelled in terms of subsection (3)
(a)
the consumer shall return the performance of the supplier or, where applicable, cease using the services performed; and
(b)
the supplier shall refund all payments made by the consumer minus the direct cost of returning the goods.
(5)
The supplier shall utilize a payment system that is sufficiently secure with reference to accepted technological standards at the time of the transaction and the type of transaction concerned.
(6)
The supplier is liable for any damage suffered by a consumer due to a failure by the supplier to comply with subsection (5).
(7)
This section does not apply to an electronic transaction
(a)
for financial services, including but not limited to, investment services, insurance and reinsurance operations, banking services and operations relating to dealings in securities;
(b)
by way of an auction;
(c)
for the supply of foodstuffs, beverages or other goods intended for everyday consumption supplied to the home, residence

Cooling-off period

or workplace of the consumer;

(d)
for services which began with the consumer's consent before the end of the seven-day period referred to in section 207;
(e)
where the price for the supply of goods or services is dependent on fluctuations in the financial markets and which cannot be controlled by the supplier;
(f)
where the goods
(i)
are made to the consumer's specifications,
(ii)