Navigating International Data Transfers: Complying with Barbados Data Protection Act
The internet and related modes of digital communication have become indispensable tools for operating businesses in Barbados. An implication of using modern digital communication mechanisms: significant amounts of data, including personal data is regularly transmitted within and outside organisations.
Implicit in this state of affairs, given the inherent capabilities of modern communication technologies to transcend borders, is an additional balancing act to be carried out. Law makers must now put mechanisms in place to ensure the preservation of basic privacy rights of persons within their borders when their personal information is transmitted across international borders. All this, while being mindful of the imperative to not stymy or slow down business.
The Barbados Data Protection Act, 2019-29 (the “Act”) attempts to achieve this delicate balance by laying out a framework for lawfully and fairly transferring personal data outside the country.
1 Understanding the General Principles
The Act outlines fairly robust provisions to safeguard the rights and freedoms of data subjects, particularly concerning the transfer of personal data to countries or territories outside its jurisdiction. Section 22 of the Act sets forth the general principles governing such transfers. That section emphasises two key principles: the need to ensure an adequate level of protection and a requirement to implement appropriate safeguards.
1.1 Ensuring Adequate Protection
The Act mandates that personal data cannot be transferred outside Barbados unless the receiving jurisdiction provides an adequate level of protection for data subjects' rights and freedoms. This encompasses not only legal safeguards but also effective remedies for data subjects in case of breaches or violations.
Implicit in the obligation to ensure an adequate level of protection for data leaving Barbados is the requirement to conduct transfer impact assessments. This can be gleaned from the relevant requirements in the Act that must be considered when determining adequacy. the Act outlines various factors, including the nature of the personal data, the countries involved in the transfer, the purposes and duration of processing, relevant laws and international obligations, as well as security measures implemented in the destination country or territory.
1.1.1 Establishing Safeguards
Once it can be demonstrated that one of the expressly stated safeguards mechanisms outlined in Act are present in respect of an international transfer, the requirement will be deemed met. The mechanisms in the Act include: legally binding instruments between public authorities, binding corporate rules, standard data protection clauses prescribed by the Data Protection Commissioner, contractual clauses, or provisions in administrative arrangements. Each method ensures that data subjects' rights remain enforceable and protected.
2 International Transfer Exceptions and Derogations
The Act acknowledges several circumstances where data transfers may occur without meeting all requirements outlined under the dual principles of adequate protection and appropriate safeguards. These include:
- Consent: The international transfer of personal data outside of Barbados will be deemed lawful, notwithstanding a failure to comply with several of the Act’s transfer-related provisions if it can be demonstrated that the data subject explicitly consented to the transfer.
- Necessity: There are several circumstances outlined in the Act where transfers of personal data outside of Barbados will not require compliance with the various requirements outlined above. Some notable necessity-based derogations include the performance of a contract, public interest, legal proceedings, matters to do with the vital interests of data subjects.
- Information on a Public Register: If the personal data to be transferred is information that is already on a public register, will, in some circumstances constitute a lawful derogation from the requirements for international transfers.
- Approval by the Commissioner: The Data Protection Commissioner, may allow international data to be transferred in two ways: (i) on approved terms that satisfies the Commissioner that adequate safeguards will be ensured; and (ii) where the Commissioner is satisfied that the manner in which the data is to be transferred will adequately safeguard the rights and freedoms of the persons whose data is being transferred.
3 Compliance and Consequences
Non-compliance with the Act's provisions carries significant consequences. Fines or imprisonment for contravention of the transfer framework are a potential consequence of non-compliance. Put plainly, where the requirements to ensure adequate safeguards and an adequate level of protection are not met, a party may be fined as much as high as US$250,000 or up to 3 years imprisonment.
4 Local Registration for International Processors and Controllers
Often overlooked is the obligation of data processors and controllers based outside Barbados to be registered with the Data Commissioner before they can lawfully process the personal data of persons of data. Tied to this broader obligation is a further requirement for overseas controllers and processors to have a representative in Barbados. Failure of overseas controllers or processors of personal data in Barbados to nominate a local representative are subject to fines (US$5,000) and other enforcement mechanisms.
Where the data controller is not based in Barbados, the Act contemplates that the name, address and particulars of the representative must be entered in the Register of Data Controllers. The Act also stipulates that the “names, or a description of, any countries outside Barbados to which the data controller directly or indirectly transfers, or intends or may wish directly or indirectly to transfer, the data” be entered. It is important to note that while the obligation to have a local representative is currently applicable, the Government has, so far, not made the requirement to register with the Commissioner an enforceable requirement.
Article provided by INPLP member: Bartlett Morgan (Chancery Advocates, Barbados)
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