From Data Guidance

A final draft of the Cayman Islands’ Data Protection Bill 2012 is close to completion, following comments received during a public consultation period that took place last year, DataGuidance has learnt.

Jan Liebaers, the Deputy Information Commissioner, said: “The Data Protection Working Group has evaluated the various comments received, including comments from the Human Rights Commission and others, and is now in the process of completing a final draft in the light of recent data protection developments in Europe.”

As DataGuidance previously reported* (see below), the Bill is based on the European Data Protection Directive (EU/95/46), with the Cayman Islands aiming to receive the coveted adequacy recognition from the European Commission.

Once finalised, the Bill will be presented to Cabinet by the Attorney General for approval after which it will be tabled in the Legislative Assembly following the elections in May 2013. “This has undoubtedly been a long drafting process”, said Liebaers. “However, under the circumstances – the changing data protection landscape in Europe and the complexity of the legislation – I believe this is quite justifiable.”

Once passed, the Bill will introduce a comprehensive privacy regime for the first time in the Cayman Islands; previously information rights were provided under the Freedom of Information Law 2007.

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*Cayman Islands: Draft Data Protection Bill aims to meet international standards

The Data Protection Working Group (DPGW) of the Cayman Islands launched – on 2 September 2012 – a two month consultation on the draft Data Protection Bill 2012 (the Bill), which has been put together with the aim of achieving European Commission (EC) recognition of the Cayman Islands’ data protection regime as adequate.

“The Data Protection Bill is based on the European Directive EU/95/46, but the Drafting Committee has improved on the model, given the fact that the Directive itself is under review by the EC”, said Jan Liebaers, the Deputy Information Commissioner, who represented the Information Commissioner’s Office (ICO) on the Drafting Committee for the Bill. “It is especially important that the Cayman Islands show that it meets and exceeds international standards. With this legislation, the Cayman Islands is aiming to receive the EC’s coveted data protection ‘adequacy status’, which would undoubtedly place Cayman in a better position to compete internationally and which may open up new business opportunities here.”

The Bill would regulate the collection and use of personal data by the private and public sectors, as well as grant new rights to individuals – part of which are already embedded in the Freedom of Information (FOI) Law 2007. The Bill would also introduce obligations for data controllers, including obligations to process personal data in accordance with the data protection principles, and to notify data breach ‘without undue delay’ to the ICO and to individuals in some circumstances.

Chairman of the DPGW David Archbold from the Information and Communications Technology Authority, said: “The proposed legislation will have tangible benefits for the Cayman Islands and be an effective tool to advance the right to privacy. The Working Group seeks to present a comprehensive Bill to Cabinet that suits the needs of the Cayman Islands while meeting international standards.” The DPGW is inviting comments on any aspect of the draft Bill, but in particular, it is interested in the stakeholders’ views on individuals’ rights, exemptions and the ICO’s enforcement powers. The consultation closes on 2 November 2012.

The Bill, which is in part modelled on Jersey’s data protection regime, would place limits on how personal data may be used or shared with third parties, and include specific provisions for sensitive personal data. In addition, the Bill would grant remedies, including compensation, to affected individuals.

It is proposed that the ICO, currently responsible for oversight of the FOI Law, would take on a similar role for data protection and be given powers to enforce the law. Certain data protection breaches would qualify as criminal offences and fines of up to of 100,000 Cayman Islands dollars KYD (approx. € 97,000) and/or sentences up to five years’ imprisonment upon conviction by a court, could be imposed.

Liebaers said: “Many larger companies, particularly those that conduct business internationally, will already know and apply this or a very similar privacy regime [internally within companies]. Other companies that may not yet have given much thought to the way they process and use personal information may need to adapt their practices significantly. The risks of privacy infringements are grave, and it is time that all data controllers take this issue seriously.”

The DPWG recommends that after the Bill is passed by the Legislative Assembly, it should be implemented over at least a twelve month period, with phased registration of data controllers occurring first. Training and guidance would be provided and at the end of the implementation period, the full provisions of the Law should be brought into effect by Order of the Governor.

“International businesses and their clients expect jurisdictions to have in place comprehensive data protection regimes that satisfy their compliance requirements and facilitate the easy transfer of personal information throughout their organisations”, stated the DPGW. “[We] believe that the draft Bill will meet these requirements and will create a robust and proportionate data protection regime that will enhance Cayman’s reputation and competitiveness in the global marketplace”.

If the Bill is passed, Cayman Islands will join over forty countries worldwide which currently have European-style data protection laws at the national or federal level. Another Caribbean country, Jamaica, is also expected to promulgate its Data Protection Act this year.

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