Human Rights Commission raises concerns over proposal
Sweeping proposals contained in the Cayman Islands Data Protection Bill, 2011, will be left for the next government to deal with following the dissolution of the previous Legislative Assembly on Tuesday.
It looks as though the government will need the extra time to work out some serious issues in the proposal, if a recent evaluation done by the Human Rights Commission is any indication.
The Data Protection Draft Bill, 2011, is similar to legislation approved by the European Union and the United Kingdom in the 1990s, which seeks to regulate the processing of personal data to ensure those records are maintained fairly, accurately and kept from those with no right to see them. The proposal also has major implications for the territory’s Freedom of Information Law and how journalists, writers and artists can make use of personal information.
“Data protection is aimed principally at giving effect to the rights to privacy in relation to data while ensuring that certain exceptions are allowed,” states a memorandum attached to the draft bill, which was released in early September for public comment. The public review period will last until 2 November.
The Data Protection Bill applies to everyone in the Cayman Islands, public and private sector alike, as well as entities outside the islands that have certain data processing functions here.
The Human Rights Commission, which is headed by chairman Richard Coles, reviewed the bill late last year and reported on it to the Legislative Assembly in a document made public last week. Among the concerns identified by the commission was that the general complexity of the bill makes it unfriendly for users.
“The aim of the Data Protection Law is to protect individuals’ rights with regard to data specific to them; persons cannot grasp, defend, nor exercise such rights without the requisite understanding of the law itself,” according to the commission’s annual report. “The extent to which persons, especially small business owners, will receive assistance in adhering to this new piece of legislation was also very concerning.”
Cayman Islands Chamber of Commerce members raised several issues last year during a discussion of data protection, including what new costs would be placed on local firms seeking to comply with the bill’s requirements.
Russell Richardson of the Cayman Islands Information and Communication Technology Authority served on the data protection working group.
“For medium to small businesses, there’s not that much that needs to be done,” Mr. Richardson told Chamber members. “But how you keep your data is important. Don’t put personal data in your bin that people can go through.”
Also, accidental e-mails that inadvertently send personal information to the wrong accounts can be a problem, he said.
Another issue identified by the commission as troubling was that the proposal had been modelled based on European legislation and may need a more localised “Caymanian template” going forward rather than draw from “a Jersey adaptation of a UK adaptation of an EU directive”.
For instance, the use of the Cayman Islands Information Commissioner’s Office as the arbiter of data protection dispute seemed “strange”, according to the commission.
“In many respects, the principles behind freedom of information and data protection are diametrically opposed,” the commission noted in its report. “One promotes dissemination of information and the other promotes privacy.”
Another matter raised by the commission involved a lack of definition with regard to what is considered to be in the “public interest” in cases where data protection to protect personal privacy is invoked.
“Implementing the Data Protection Bill without regulations or codes of practice appears to leave open the possibility for data controllers to arbitrarily apply a ‘public interest test’,” the commission noted.
In any case, it seems unlikely that data protection would top the list of any incoming government’s “to do” list. Commission officials expected the matter to be put off at least until the last quarter of 2013.
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