Digicel says Data Act may impact proposed Caricom Single ICT Space

But gov't says protection necessary

Senior staff reporter

Sunday, January 14, 2018

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Minister of Science, Energy and Technology Dr Andrew Wheatley says every effort is being made to ensure that Jamaica's Caricom partners are not disadvantaged by the provisions of the new Data Protection Bill, currently before Parliament.

However, Dr Wheatley says that the government has a duty to ensure adequate protection in the use of data for Jamaicans, as well as foreign investors.

“Jamaicans deserve the highest level of protection for their data and privacy, and we have to ensure that the citizens and our investors are satisfied with the level of protection provided in this Bill,” Dr Wheatley told the Jamaica Observer.

He was responding to concerns raised by major telecommunications company Digicel, that by taking the lead among Caribbean countries in introducing comprehensive data protection and privacy legislation, Jamaica could have problems dealing with many of its Caricom partners who do not have legislation in place which would allow them to meet the requirements of section 31 of the Bill.

“The absence of explicit provisions for enabling a contractual basis for the transfer of data means it is possible that the development of the Caricom Single ICT Space could be impacted, if data controllers choose not to transfer data from Caricom jurisdictions in order to mitigate the risk,” Digicel's legal and regulatory director Tobi-Ann Chang told Tuesday's meeting of a joint select committee of Parliament which is reviewing the Bill.

Wheatley has portfolio responsibility for the Bill and chairs the 11-man committee which was having its first full discussions on the Bill that was tabled in Parliament in October.

Chang insisted that, given the scale of penalties under the proposed legislation, data controllers were likely to be risk-adverse regarding the transfer of data internationally.

She said that Digicel had taken note that a number of regional multinational companies have Jamaican headquarters and substantial Jamaican operations.

“These included conglomerates in the food production and retail sectors, the trourism sector, media and telecommunications sector,” she noted.

“In order to continue to encourage Jamaica as a hub for regional economic activity, Digicel suggests that explicit provisions be made to facilitate international intra-company transfers between members in the same group. These provisions should, of course, ensure the protection of individuals to optimise their operation and technology processes,” Chang contended.

She noted that Section 31 of the Bill does not allow personal data to be transferred to a state or territory outside of Jamaica, unless the state or territory ensures an adequate level of protection “for the rights and freedoms of data subjects in relation to the processing of personal data”.

However, senior adviser to Wheatley and chairman of the Spectrum Management Authority (SMA), Trevor Forrest, insists that all Caricom countries should be looking at making the same steps that Jamaica is taking in protecting the data of its citizens and investors.

“It will not discourage investments. In fact, it will encourage investments, because some investors do not want to do business unless you can guarantee them this level of protection,” Forrest told Sunday Finance.

Section 31(1) of the Bill states that personal data shall not be transferred to a state or territory outside of Jamaica, unless the state or territory ensures an adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.

That protection has to cover: the nature of the personal data; the state or territory of origin of the information contained in the data; the state or territory of final destination of that information; the purpose for which and the period during which the data is intended to be used; the law in force in the state or territory; the international obligations of that state or territory; any relevant codes of conduct or other enforceable rules in that state or territory; and any security measures taken in respect of the data in that state or territory.




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