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NIDS ruling could impact data protection talks

BY ALPHEA SAUNDERS
Senior staff reporter
saundersa@jamaicaobserver.com

Friday, July 12, 2019

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THERE are indications from the Attorney General's Chambers (AGC) that the Constitutional Court ruling on the controversial National Identification and Registration Act (NIRA) in March could have some implications for the deliberations on the Data Protection Act which is now before a Joint Select Committee of Parliament.

The Government had promised that the Data Protection Bill would support the National Identification System (NIDS) by ensuring the privacy of personal information collected by the Government and its agencies.

The court ruled that the NIRA was unconstitutional and, among other things, pointed to a lack of or inadequate mechanisms to prevent the use of data obtained from Jamaicans for other purposes.

Speaking at yesterday's meeting of the Joint Select Committee, Assistant Crown Counsel in the AGC Jeffery Foreman said the AGC has been considering the judgment and its implications for the data protection legislation and has identified two issues which may have some implications for how the committee proceeds with its deliberations on aspects of the Bill.

“One is in relation to the extraterritorial application – whether the burdens placed on persons in Jamaica processing information on Jamaicans will apply to persons outside of Jamaica doing the same thing; and the other is in relation to the fines which apply in the legislation. One of the concerns expressed in the judgment was that where data is being processed by others, given the nature of data, that the fines have to be sufficiently severe to deter individuals, especially companies that seek to profit from the data of others, from doing so. So, in considering the fines, the committee should satisfy itself that those are sufficiently high from deterring anyone from using others' information unlawfully,” he stated.

However, Foreman stressed that the context of NIDS is very different from what the data protection legislation is seeking to do, which is to provide a framework within which people's data rights can be protected.

The joint select committee has resumed sitting after more than a year, and is now chaired by Minister of Science, Energy and Technology Fayval Williams. It was previously chaired by then minister Dr Andrew Wheatley, and held its last meeting in March 2018, four months before he resigned from office.

The Opposition has been clamouring for the committee to reconvene, especially in light of the concerns raised by the court about data protection in the NIDS judgment.

The committee has so far heard submissions from 25 stakeholder individuals and groups, including the Press Association of Jamaica (PAJ) which has recommended that journalism be exempt from the legislation. Among its core concerns were: allegations that publication is not only for the purpose of journalism could stifle the profession, and that the data protection commissioner is placed in a superintending role to determine whether the publication is in the public's interest.

Other concerns, as raised by the Jamaica Bankers Association, telecommunications provider Digicel, Jamaica Computer Society, and the United States Chamber of Commerce, had to do with the Bill's requirement for the appointment of data protection officers to independently monitor data controllers' compliance with the law and ensure that any contravention is dealt with, consult with the data protection commissioner regarding any issues with the Bill, and assist the subject of the data in exercising his or her rights.

The stakeholders said they were concerned about the possibility of self-incrimination and inherent conflict of interest, and they argued that the regime was onerous on micro small and medium-sized enterprises. They also questioned whether there were sufficiently qualified professionals to appoint as data protection officers given the newness of the legislation.

The Bill gives legal effect to secure the confidentiality of personal data which may be in the possession of State and private entities and establishes the office of an information commissioner charged with overseeing the handling of such data.


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