ELECTRONIC TRANSACTIONS ACT, 2008 SS 116-144

ELECTRONIC TRANSACTIONS ACT, 2008
116. Intent

A person who uses any electronic medium or any electronic agent whether in part or in whole is deemed to intend to cause or contribute to causing the event which results from the use or intervention of the elec­tronic medium or agent.

117. Criminal negligence

A person who uses an electronic medium or any electronic agent whether in part or in whole is deemed to have caused an event negligently if without intending to cause the event, the person causes it by voluntary action from the use or intervention of an electronic medium or agent with­out the skill and care as are reasonably necessary under the circumstances.

118. Access to protected computer

A person who secures unauthorised access or attempts to secure access to a protected system in contravention of a provision of this Act commits an offence and is liable on summary conviction to a fine of not more than five thousand penalty units or to a term of imprisonment of not more than ten years or to both.

119. Obtaining electronic payment medium falsely

A person who makes or causes to be made either directly or indi­rectly, a false representation to procure the issue of an electronic payment medium personally or to another person commits an offence and is liable on summary conviction to a fine of not more than five thousand penalty units or to a term of imprisonment of not more than ten years or to both.

120. Electronic trafficking

A person who is found in possession of any electronic related payment medium invoices, vouchers, sales drafts, or other representations of devices related to the manufacture or use of the device without lawful explanation commits the offence of electronic trafficking and is liable on summary conviction to a fine of not more than five thousand penalty units or a term of imprisonment of not more than ten years or to both.

121. Possession of electronic counterfeit-making equipment

A person who receives, possesses, transfers, buys, sells, controls, or has custody of equipment used in the manufacture of counterfeit electronic related materials or electronic record commits an offence and is liable on summary conviction to a fine of not more than five thousand penalty units or to a term of imprisonment of not more than ten years or to both.

122. General offence for fraudulent electronic fund transfer

A person who without authority, in the course of an electronic fund transfer, uses the personal or financial record or credit account numbers or electronic payment medium of another with intent to defraud an issuer or a creditor or who obtains money, goods, services, or anything fraudulently commits an offence and is liable on summary conviction to a fine of not more than five thousand penalty units or to a term of imprisonment of not more than ten years or to both.

123. General provision for cyber offences

Except as provided for in this Act, any offence under a law which is committed in whole or in part by use of an electronic medium or in electronic form is deemed to have been committed under that Act and the provisions of that Act shall apply with the necessary modification to the person who commits the offence.

124. Unauthorised access or interception

A person who intentionally accesses or intercepts an electronic record without authority or permission commits an offence and is liable on summary conviction to a fine of not more than two thousand five hundred penalty units or to a term of imprisonment of not more than five years or to both.

125. Unauthorised interference with electronic record

A person who intentionally and without authority interferes with an electronic record in a way which causes the electronic record to be modified, destroyed or otherwise rendered ineffective, commits an offence and is liable on summary conviction to a fine of not more than two thousand five hundred penalty units or to a term of imprisonment of not more than five years or to both.

126. Unauthorised access to devices

A person who unlawfully produces, sells, offers to sell, procures for use, designs, adapts for use, distributes or possesses any device, including a computer programme or a component, which is designed primarily to overcome security measures for the protection of an electronic record, or performs any of those functions with regard to a password, access code or any other similar kind of electronic record, commits an offence and is liable on summary conviction to a fine of not more than two thousand five hundred penalty units or to a term of imprisonment of not more than five years or to both.

127. Unauthorised circumvention

to overcome security measures designed to protect the electronic record or access to it commits an offence and is liable on summary conviction to a fine of more than two thousand five hundred penalty units or to a term of imprisonment of not more than five years or to both.

128. Denial of service

A person who commits any act described in this Act with intent to interfere with access to an information system to effect a denial, includ­ing a partial denial of service to legitimate users commits an offence and is liable on summary conviction to a fine of not more than two thousand five hundred penalty units or a term of imprisonment of not more than two years or to both.

129. Unlawful access to stored communications

(1) Whoever, without lawful authority, intentionally accesses a facility through which an electronic communication service is provided, commits an offence and is liable on summary conviction to a fine of not more than five thousand penalty units or to a term of imprisonment of not more than ten years or to both.

(2) Whoever without lawful authority exceeds an authorisation to access a facility or obtains, alters, or prevents authorised access to a wire or electronic communication while it is in electronic storage in a system commits an offence and is liable on summary conviction to a fine of not more than five thousand penalty units or to a term of imprisonment of not more than ten years or to both.

130. Unauthorised access to computer programme or electronic record

(1) A person who knowing and without authority causes a computer to perform any function to secure access to a programme or electronic record held in that computer or in any other computer, commits an offence and is liable on summary conviction to a fine of not more than two thousand five hundred penalty units or to a term of imprisonment of not more than five years or to both.

(2) For the purposes of sections 107 to 141, it is immaterial that the act in question is not directed at

(a) a particular programme or electronic record,

(b) a programme or electronic record of any kind, or

(c) a programme or electronic record held in any particular computer.

(3) A person secures or gains access to a programme or electronic record held in a computer if by causing the computer to perform any func­tion, the person

(a) alters or erases the programme or electronic record,

(b) copies or moves it to a storage medium other than that in which it is held or to a different location in the storage me­dium in which it is held,

(c) uses it, or

(d) causes it to be output from the computer in which it is held, whether by having it displayed or in any other manner, and references to access to a programme or electronic record and to an intent to secure the access, shall be read accordingly.

(4) A person uses a programme if the function the person causes the computer to perform

(a) causes the programme to be executed, or

(b) is itself a function of the programme.

(5) For the purposes of this Act, the form of any programme or electronic record is immaterial.

131. Unauthorised modification of computer programme or electronic record

(1) A person who does any direct or an indirect act without authority which the person knows or ought to have known will cause an unauthorised modification of any programme or electronic record held in a computer commits an offence and is liable on summary conviction to a fine of not more that five thousand penalty units or a term of imprison­ment of not more than ten years or to both.

(2) It is immaterial that the act in question is not directed at

(a) any particular programme or electronic record,

(b) a programme or electronic record of any kind,

(c) a programme or electronic record held in any particular computer, or

(d) any unauthorised modification is, or is intended to be, per­manent or merely temporary.

(3) A modification of a programme or electronic record occurs if, by the operation of a function of the computer concerned or any other computer,

(a) a programme or electronic record held in the computer is altered or erased,

(b) a programme or electronic record is added to or removed from a programme or electronic record held in the computer, or

(c) an act occurs which impairs the normal operation of any computer.

(4) An act which contributes towards causing a modification is regarded as causing it.

(5) A modification is unauthorised if the person who causes it

(a) is not entitled to determine whether the modification should be made,

(b) is not authorised to make the modification or knowingly acted in excess of the authorised modification, or

(c) does not have consent to the modification from the person who is entitled.

132. Unauthorised disclosure of access code

A person who knowingly and without authority discloses a pass­word, access code or any other means of gaining access to a programme or electronic record held in a computer commits an offence and is liable on summary conviction to a fine of not more than ten thousand penalty units or a term of imprisonment of not more than twenty years or to both.

133. Offence relating to national interest and security

(1) Whoever knowingly accesses a computer without authorisa­tion or exceeds authorised access, and by means of the conduct accesses information from a protected computer commits an offence and is liable on summary conviction to a fine of not more than ten thousand penalty units or to a term of imprisonment of not more than twenty years or to both.

(2) Whoever intentionally accesses a computer without authorisa­tion or exceeds authorised access to a computer which contains

(a) information stored in, transiting through or in the financial records of a financial institution, or consumer reporting agency,

(b) information from a department or agency of the Government,

(c) information from a protected computer, or

(d) information relating to the security of the Republic of Ghana commits an offence and is liable on summary conviction to a fine of not more than ten thousand penalty units or to imprisonment for a term of not more than twenty years or to both.

(3) Whoever without authorisation or in excess of authorisation by any act, omission, computer hardware or software manipulation or use knowingly causes the transmission of a program, information, code, or command and as a result of the conduct, causes damage to a protected computer commits an offence and is liable on summary conviction to a fine of not more than ten thousand penalty units or to a term of imprisonment of not more than twenty years or to both.

134. Causing a computer to cease to function

A person who intentionally engages in conduct, including virus writing, virus and worm dissemination which causes a computer to cease to function permanently or temporarily commits an offence and is liable on summary conviction to a fine of not more than five thousand penalty units or to imprisonment for a term of not more than ten years or to both.

135. Illegal devices

A person who intentionally, recklessly, without lawful excuse or justification, possesses, produces, sells, procures for use, imports, exports, distributes or otherwise makes available

(a) a device, including a computer programme, that is designed or adapted for the purpose of committing an offence, or

(b) a computer password, access code or similar electronic record by which the whole or any part of a computer system is ca­pable of being accessed with the intent that it be used by a person for an offence commits an offence and is liable on summary conviction to a fine of not more than five thousand penalty units or a term of imprisonment of not more than ten years or to both

136. Child pornography

(1) A person who intentionally does any of the following acts:

(a) publishes child pornography through a computer;

(b) produces or procures child pornography for the purpose of its publication through a computer system; or

(c) possesses child pornography in a computer system or on a computer or electronic record storage medium commits an offence and is liable on summary conviction to a fine of not more than five thousand penalty units or a term of imprisonment of not more than ten years or to both.

(2) In this section:

“child pornography” includes material that visually depicts

(a) a child engaged in sexually explicit conduct;

(b) a person who appears to be a child engaged in sexu­ally explicit conduct;

(c) images representing a child engaged in sexually ex­plicit conduct; and

(d) unauthorised images of nude children;

“child” means a person below eighteen years;

“publish” means

(a) distribute, transmit, disseminate, circulate, deliver, exhibit, lend for gain, exchange, barter, sell or offer for sale, let on hire or offer to let on hire, offer in any other way, or make available in any way;

(b) have in possession or custody, or under control, for the purpose of doing an act referred to in paragraph (a); and

(c) print, photograph, copy or make in any other manner whether of the same or of a different kind or nature to carry out an act referred to in paragraph (a).

137. Confiscation of assets

A Court may order the confiscation of moneys, proceeds, properties and assets purchased by a person with proceeds derived from or in the commission of the offence on the conviction of the person for an offence under this Act and may further order the return of any money or thing to any victim of the crime.

138. Order for compensation

(1) A Court may make an order against a person for the payment of a sum to be fixed by the Court as compensation to be paid by the person to any person for damage caused to that person’s computer, program or electronic record as a result of the offence for which the sentence is passed.

(2) A claim by a person for damages sustained because of the of­fence shall be deemed to have been satisfied to the extent of an amount which has been paid to the person under an order for compensation, but the order shall not limit any right to a civil remedy for the recovery of damages beyond the amount of compensation paid under the order.

(3) An order for compensation under this section is recoverable as a civil debt.

139. Ownership of programme or electronic record

A programme or electronic record held in a computer is deemed to be property of the owner of the computer.

140. Conviction and civil claims

A conviction shall not limit the right of a complainant to bring a civil action.

141. Record and access to seized electronic record

(1) If a computer or electronic record has been removed or rendered inaccessible after a search or a seizure under this Act, the person who made the search shall, at the time of the search or as soon as practi­cable after the search,

(a) make a list of what has been seized or rendered inaccessible, with the date and time of seizure, and

(b) give a copy of that list to

(i) the occupier of the premises, or

(ii) the person in control of the computer.

(2) The police officer or another authorised person may refuse to give access or provide copies if giving the access, or providing the copies

(a) would constitute a criminal offence, or

(b) would prejudice

(i) the investigation in connection with which the search was carried out,

(ii) another ongoing investigation, or

(iii) criminal proceedings that are pending or that may be brought in relation to any of those investigations.

Miscellaneous matters
142. Territorial scope of offences under this Act

(1) This Act has effect in relation to a person of whatever national­ity outside as well as within the country and where an offence under this Act is committed by a person in any place outside the country, the person may be dealt with as if the offence had been committed within the country.

(2) This Act shall apply if, for the offence in question

(a) the accused was in the country at the material time;

(b) the electronic payment medium, computer or electronic record was issued in or located or stored in the country at the material time;

(c) the electronic payment medium was issued by a financial institution in the country; or

(d) the offence occurred within the country, on board a Ghana­ian registered ship or aircraft or on a voyage or flight to or from this country at the time that the offence was committed, whether paragraph (a), (b) or (c) applies.

143. Regulations

The Minister may by legislative instrument make regulations

(a) to define, enlarge or restrict the meaning of a word or expres­sion used in this Act;

(b) to specify provisions of or requirements under another enact­ment to which this Act does not apply;

(c) to prescribe records, information or classes of records or information not applicable to this Act;

(d) to prescribe records or classes of records for which a require­ment under law for the signature of a person must be satis­fied by an electronic signature and proof that, in view of the circumstances including any relevant agreement and the time the electronic signature was made,

(i) the electronic signature is reliable for the purpose of identifying the person, and

(ii) the association of the electronic signature with the relevant electronic record is reliable for the purposes for which the electronic record was made;

(e) to provide for electronic signatures;

(f) to provide for the electronic means to be used to send, re­ceive or retain information or records in electronic form if an enactment requires a person to send, receive or retain the information or records; and

(g) to provide for any other matter necessary for the effective implementation of this Act.

144. Interpretation

In this Act, unless the context otherwise requires,

access” includes the actions of a person who, after taking note of data, becomes aware of the fact that there is no authorisa­tion to access that data and still continues to access that data;

addressee”, in respect of an electronic record, means a person who is intended by the originator to receive the electronic record, but not a person acting as an intermediary with respect to that electronic record;

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

authentication service provider” means a person whose au­thentication products or services have been accredited by the Certifying Agency under this Act;

Agency” means the National Information Technology Agency;

automated transaction” means an electronic transaction con­ducted or performed, in whole or in part, by means of elec­tronic records in which the conduct or electronic records of one or both parties are not reviewed by an individual in the ordinary course of the individual’s business or employment;

Board” means Board of the Agency;

browser” means a computer programme which allows a person to read hyperlinked electronic records;

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;

“ccTLD” means country code domain at the top level of the Internet’s domain name system assigned according to the two-letter codes in the International Standard ISO 3166-1 (Codes for Representation of Names of Countries and their Subdivision);

“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 an electronic record;

“Certifying Agency” means the Certifying Agency established under this Act;

“clear days” means complete days excluding the day of dispatch.

“computer” means a device or a group of inter-connected or related devices, including the Internet, one or more of which, pursuant to a programme, performs automatic processing of data or any other function but does not include

(a) portable hand held calculator,

(b) an automated typewriter or typesetter,

(c) a similar device which is non-programmable or which does not contain any data storage facility, or

(d) any other device that the Minister may prescribe in the Gazette;

 “computer output” or “output” means a statement or representa­tion, whether in written, printed, pictorial, graphical, elec­tronic, digital or any other form, purporting to be a statement or representation of fact

(a) produced by a computer, or

(b) accurately translated from a statement or representa­tion so produced,

 “computer service” includes computer time, computer output, data processing and the storage or retrieval of a programme or data;

 “consumer” means an individual 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;

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

 “Court” means any judicial, quasi-judicial or other administra­tive tribunal established by law;

“critical database” means a crucial set of data in an electronic record related to national security or the economic well being of the public determined by the Minister;

 “critical database administrator” means the person responsible for the management and control of a critical database;

 “critical electronic record” means an electronic record, group or classification of electronic record which is declared by the Minister to be of importance to the protection of the national security of the Republic or the economic and social well-being of its citizens;

“cyber inspector” means a staff of the National Information Technology Agency with power to monitor, investigate, prosecute any offence under this Act and any other law enforcement agency acting under any provision of this Act;

“damage”, includes impairment to a computer or the integrity or availability of a programme or data held in a computer that

(a) causes loss within the period prescribed under the Limitation Decree, 1972 (N.R.C.D. 54),

(b) modifies or impairs, or potentially modifies or im­pairs, the medical examination, diagnosis, treatment or care of a person,

(c) causes or threatens physical injury or death to a per­son, or

(d) threatens the public interest;

“decryption information” means information or technology that enables a person to readily retransform or unscramble an encrypted programme or data from its unreadable and incomprehensible format to its plain text version;

“device” means anything or apparatus that is used or capable of being used to intercept a function of a computer or elec­tronic record;

 “digital signature” means data attached to, incorporated in, or logically associated with other data and which is intended by the user to serve as a signature;

 “domain name” means an alphanumeric designation 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 IP addresses or other information;

 “e-government services” means a public service provided by electronic means by a public body in the country;

“e-mail” means electronic mail, an electronic record used or intended to be used as a mail message between the originator and addressee in an electronic communication;

“electronic agent” means a computer programme or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part, in an automated transaction;

 “electronic communication” means a communication by means of electronic records;

“electronic payment medium” includes any medium issued to a holder capable of being used to make an electronic financial transaction;

 “electronic record” includes data generated, sent, received or stored by electronic means

(a) voice, where voice is used in an automated transac­tion; and

(b) a stored record;

“electronic transaction” means a transaction by an electronic agent;

“encrypted product” means a product that makes use of en­cryption techniques and is used by a sender or recipient of electronic record to ensure

(a) that the data can be accessed only by relevant persons,

(b) the authenticity of the data,

(c) the integrity of the data, or

(d) that the source of the data can be correctly ascer­tained;

 “encrypted programme or electronic record” means a programme or data which has been transformed or scrambled from its plain text version to an unreadable or incomprehensible format, regardless of the technique utilized for the trans­formation or scrambling and irrespective of the medium in which the programme or data occurs or can be found for the purposes of protecting the content of the programme or data;

 “encryption provider” means any person who provides or who proposes to provide encryption services or products in the country;

“encryption service” means a service which is provided to a sender or a recipient of an electronic record or to anyone storing an electronic record, which is designed to facilitate the use of encryption techniques to ensure

(a) that the data or electronic record can be accessed or can be put into an intelligible form only by certain persons,

(b) that the authenticity or integrity of the data or elec­tronic record is capable of being ascertained,

(c) the integrity of the data or electronic record, or

(d) that the source of the data or electronic record can be correctly ascertained,

 “essential emergency service” means a vital service to avoid the imminent occurrence of a situation which is out of the ordinary which threatens to endanger a person, public safety or cause damage to property;

“financial institution” means an entity that undertakes financial intermediation;

“financial intermediation” means a process of transferring funds from one entity to another entity;

“Forum” means Industry Forum;

“function” includes logic, control, arithmetic, deletion, storage and retrieval, and communication or telecommunication to, from or within a computer;

“Gazette” includes an electronic record of the Gazette and publica­tion on the website of the appropriate Government Agency;

 “.gh domain name space” means the .gh ccTLD assigned to the Republic according to the two-letter codes in the International Standard ISO 3166;

“Government” means any authority by which the executive authority of the Republic is duly exercised;

“home page” means the primary entry point webpage of a web site;

“hyperlink” means a reference or link from some point in one electronic record directing a browser or other technology or functionality to another electronic record or point in that electronic record or to another place in the same electronic record;

“hyper text” means a reference or link from some point in one electronic record directing a browser or other technology or functionality, to another electronic record or point or to another place in the same electronic record;

 “incorporated body” means an entity registered under the Companies Code 1963 (Act 179), the incorporated Private Partnerships Act 1962 (Act 152) or the Trustees Incorpora­tion Act, 1962 (Act 106); [NB: Act 179 has since been repealed and replaced by the Companies Act, 2019 (Act 992)]

industry” means the communications industry;

 “Industry Forum” means the communications industry meeting from time to time to discuss matters of common interest to and concerning the industry;

“information system” includes a system for generating, send­ing, receiving, storing, displaying or otherwise processing electronic records and 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 electronic records 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” includes, in relation to a function of a computer or electronic record, listening to or recording a function of a computer or electronic record, or acquiring the substance, meaning or purport of it;

“intermediary” means a person who, on behalf of another person, whether as agent or not, sends, receives or stores a particular electronic record or provides other services with respect to that electronic record;

“Internet” means the interconnected system of networks that connects computers around the world using the TCP/IP and future versions of the inter connected system;

 “IP address” means the number identifying the point of connec­tion of a computer or other device to the internet;

“law enforcement agency” means the police, customs, excise and preventive service and any other law enforcement agency authorised by law to exercise police powers;

“Minister” means the Minister responsible for Communications;

“Ministry” means the Ministry responsible for Communications;

 “originator” means a person by whom, or on whose behalf, an electronic record purports to have been sent or generated prior to storage, but does not mean a person acting as an intermediary with respect to that electronic record;

 “person” includes a public agency;

“personal information” means information about an identifiable individual, including, but not limited to

(a) information relating to the race, gender, sex, pregnan­cy, marital status, nationality, ethnic or social origin, colour, sexual orientation, age, physical or mental health, well-being; disability, religion, conscience, belief, culture, language and birth of the individual;

(b) information relating to the education or the medical, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved;

(c) any identifying number, symbol, or other particular assigned to the individual;

(d) the address, fingerprints or blood type of the indi­vidual;

(e) the personal opinions, views or preferences of the individual, except where they are about another in­dividual or about a proposal for a grant, an award or a prize to be made to another individual;

(f) correspondence sent by the individual that is implic­itly or explicitly of a private or confidential nature or further correspondence that would reveal the contents of original correspondence;

(g) the views or opinions of another individual about the individual;

(h) the views or opinions of another individual about a proposal for a grant, an award or a prize to be made to the individual, but excluding the name of the other individual where it appears with the views or opinions of the other individual; and

(i) the name of the individual where it appears with other personal information relating to the individual or where the disclosure of the name itself would re­veal information about the individual, but excludes information about an individual who has been dead for more than twenty years;

“plain text version” means a programme or original data before it has been transformed or scrambled to an unreadable or incomprehensible format;

“prescribe” means prescribe by regulation under this Act;

“programme or computer programme” means data representing instructions or statements which when executed in a compu­ter, causes the computer to perform a function;

“programme or data” includes a reference to a programme or data held in any removable storage medium which is for the time being in the computer;

 “public agency” means a body set-up by Government in the public interest with or without an Act of Parliament;

(a) department of central government or a department in local government; or

(b) any other functionary or institution when

(i) exercising a power or discharging a duty in terms of the Constitution; or

(ii) exercising a power or performing a function in terms of any legislation;

“public key” means the key which is available to the public for purposes of the encryption of an electronic key which is linked to a private decryption key held exclusively by the issuer of the key available to the public;

“public interest” includes a right or advantage which inures or is intended to inure to the general benefit of the people of this country;

“registrar” means an entity which is licensed by the Registry under this Act;

“Registry” means an entity licensed by the Registrar to manage and administer a specific sub domain;

“repository” means the primary register of the information maintained by a registry;

“second level domain” means the sub domain immediately fol­lowing the ccTLD;

“security agency” means a body connected with national security;

“service provider” means any person providing information system services.

 “statutory provision” means by or under an Act of Parliament;

“sub domain” means any subdivision of the .gh domain name space which is the second level domain;

 “TCP/IP” means the Transmission Control Protocol Internet Protocol used by an information system to connect to the Internet;

“TI-D” means a top level domain of the domain name system;

 “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;

“transaction” means a transaction of either a commercial or non-commercial nature and the provision of information and e-government services;

 “unauthorised access” is access of any kind by a person to a programme or data held in a computer without authority if

(a) the person is not personally entitled to control access of the kind in question to the programme or data; and

(b) the person does not have consent to access the kind of programme or data from the person who is entitled to control access;

 “unincorporated body” means an entity registered under the Registration of Business Names Act, 1962 (Act 151) or any person carrying on business without a registration or without a certificate of incorporation;

 “universal access” means access by all citizens of Ghana to in­ternet connectivity and electronic transactions;

“webpage” means an electronic record on the World Wide Web;

“website” means a location on the Internet containing a home page or web page; and

“World Wide Web” means an information browsing framework that allows a user to locate and access information stored on a remote computer and to follow references from one computer to related information on another computer.

 

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