One effect of the Cayman Islands’ proposed data protection legislation will be that, for the first time, a formal complaints process can be used against news organisations, as well as against other public and private entities that process personal information.
Data protection is aimed principally at giving effect to the rights to privacy in relation to personal data while ensuring that certain exceptions are allowed, according to a memorandum attached to the draft bill, which was released in late September. The public review period for the draft bill will last until 2 November.
The draft bill sets out a number of exemptions from application of the law which include national security, police and court matters and certain functions of the Crown. Included among those is what’s known as a “special purpose” exemption for the sake of journalism, literature or art.
That means certain requirements under the draft Data Protection Bill, such as turning over someone’s personal records kept by the organisation or person that holds them, would not apply to journalists or artists.
There are some caveats to that exception, according to the draft bill. The person or organisation processing the personal data ensure that task is “undertaken with a view to the publication by a person of any journalistic, literary or artistic material”.
Also, according to the draft bill, the person or organisation processing the information – known as the data controller – must “reasonably believe” that publication of the matter would be in the public interest and that compliance with data protection legislation is “incompatible” with the special purpose exemption.
Section 11 of the Data Protection Bill as drafted allows anyone whose personal data is held by an organisation to be able to require a person or company to stop “processing” that personal data. However, those with journalistic, literary or artistic purposes can be exempted from the requirement not to process the information if they reasonably believe publication was in the public interest.
The draft bill does not define the terms “journalist”, “artist” or “literature”.
However, if a complaint is filed over the use of certain personal information in a newspaper, website, television, radio broadcast or artistic performance, the determination of whether that use was considered exempted under the special purposes of art or journalism would have to be made by the body tasked with handling all such complaints with regard to data protection – the Cayman Islands Information Commissioner.
“It goes to the information commissioner, who will then make his or her decision and it [can] then be challenged in the courts and the court will then give its opinion,” said Russell Richardson of the Cayman Islands Information and Communication Technology Authority, who helped the data protection working group draft the law.
Mr. Richardson spoke during a presentation of the draft law to the Chamber of Commerce last month.
“We did consider whether to try and define the word ‘journalist’, if you have any ideas or any views, we would welcome comments on it,” Mr. Richardson told the Chamber ‘Be informed’ meeting. “It’s a bit of a grey area.”
“Anyone in the news media [should be exempted under the bill],” said former Chamber president Billy Adam, who expressed concern about what might happen to radio or television talk show hosts who discuss personal information. “Take journalism out and put ‘anyone in the news media’.
Another member of the working group that helped draft the data protection bill and attended the Chamber forum, attorney Peter Broadhurst, opined during the meeting: “That’s not the proper definition of journalism.”
Earlier in the Chamber discussion, Mr. Broadhurst had asked: “When did a radio commentator ever get to be a journalist?”
“This is all about people and the right to know about information that people have about them,” Mr. Broadhurst said. “If a journalist wants to step out there and use some private information, he does so at his peril. He better know what he’s doing.”
“You might stifle journalism,” Mr. Adam replied.
“Never mind stifling journalism, they’re not going to get stifled,” Mr. Broadhurst said. “The pen is mightier than the sword, and you know that.”
Mr. Richardson pointed out that Cayman’s new Bill of Rights also guarantees the right to freedom of expression, as well as the right to privacy and that the draft Data Protection Bill seeks to establish a balance between them. The Bill of Rights, which comes into legal effect in November, does not have a United States-style clause protecting freedom of the press.
“What [data protection] is doing … is actually carving out an area where journalists can keep doing what they’re doing, what they’re supposed to be doing … however you define that,” Deputy Information Commissioner Jan Liebaers said, bringing some chuckles from the Chamber meeting.