State of Privacy Laws in CARICOM/CARIFORUM: Presentation at the Caribbean IGF 2018

Privacy/Data Protection in CARICOM/CARIFORUM

I was pleased to be asked to co-present with Carlton Samuels at the just-concluded Caribbean Internet Governance Forum (“CIGF”). The CIGF, which was held in Suriname this year, is in its 14th year – which makes it, arguably, the longest running regional IGF in the entire world.

This year’s agenda was fairly heavy on the subject of privacy & data protection. In my view, this is a rather timely area of interest given the impending GDPR (which, literally, comes into effect tomorrow) and recent privacy-related events like the Cambridge Analytica/Facebook fiasco.

Our presentation focused on the Caribbean privacy and data protection landscape and sought to highlight some of the recent legislative developments as well as perceived shortcomings in giving effect to well-established privacy principles in regional legislation. We covered topics including breach notification, trans-border data transfers and fines for breaches.

A recording of the presentation can be viewed below.

Link to recording: here.

Link to Presentation: State of Privacy Laws in the Commonwealth Caribbean CIGF 2018

Guest Spot on the ICT Pulse Podcast discussing GDPR

I was really pleased to discuss the impending General Data Protection Regulation (GDPR) with Michele Maurius of ICT Pulse recently. On the eve of the GDPR’s commencement, it offered an opportunity to discuss the scope of the new law and, importantly, the potential extra-territorial implications for the Caribbean.

Link: http://www.ict-pulse.com/2018/05/ictp-005-nuts-bolts-gdpr-bartlett-morgan/

 

 

 

Enforcement powers clarified under updates to Barbados Telecommunications Act

Enforcement powers under Barbados’ Telecommunications Act are now more expansive and clear-cut following recent amendments. The newly passed Telecommunications (Amendment) Act, 2018-10 expressly extends the circumstances in which various enforcement-related activities such as injunctions, search and seizure orders and the issue of warrants may occur. Prior to the amendment, invocation of enforcement powers was almost exclusively grounded in breaches of the Act. Following the amendment, action may now be taken for breaches of any rules, regulations and orders made pursuant to the Telecommunications Act.

If you’re interested in the details, I’ve listed the essence of the changes below.

  1. Previously, the relevant minister had the power to seek injunctive relief or seek damages (pecuniary penalty) only where a telecommunications rule was breached. Under the amendment, in addition to rules, breaches of regulations and orders will also attract injunctions and pecuniary penalties.
  2. Under the amended Act, investigative powers are now extended to a licence issued under either rules, regulations or orders made under the Act. Previously, investigations were limited to breaches of the Act or licences issues under it.
  3. Pursuant to the original Act, the powers to enter, seize and/or search by an authorised inspector were limited to suspected breaches of the Act or a licence issued under it. Under the new amendments, this power has been extended to licences granted under any rule, regulation or order made in accordance with the Act or any registration or authorisation done under the Act.
  4. Magistrates were previously issued with the power to issue search warrants on suspicion that a breach of the Act had happened or was impending. Post-amendment, the magistrate may also issue a search warrant where rules, regulations and orders have been or are about to be breached.
  5. Where anyone interferes with an inspector in the execution of duties, that person will be liable to prosecution if the inspector was performing duties under the Act or any regulations, rules or orders made under it. This power was previously limited to the performance of duties pursuant to the Act itself.

Breach of confidentiality: Aswan v National Commercial Bank and a few lessons for Software Developers

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National Commercial Bank, Jamaica – Jamaicaobserver.com photo

Following the Jamaican High Court decision in Aswan v National Commercial Bank, even if a contractual provision provides for confidentiality in your dealings, it may not be enough to protect your intellectual property interests if your actions, subsequent to the entry into the contract, suggest that you are o.k. with your confidential information being disclosed to third parties.

Background

The claimants in Aswan were developers of a point-of-sale top-up software application. The claimants and the defendant bank entered into a joint-venture agreement to create and deploy a customised version of the developers’ point-of-sale software solution. The envisioned end-product would allow users of the point-of-sale devices to ‘top up’ cellular phones with call credit by swiping their credit or debit cards at the point-of-sale machines.

Point of Sale terminal
A point-of-sale terminal, similar to the kind Aswan’s software would be used with. Industries.ul.com photo

The contractual documentation included clauses in a proposal document indicating that the information provided in it was confidential. The clause also required the developers’ written consent before the bank could disclose any confidential information to any third parties. Notably, that aspect of the contractual documentation was never actually signed by the bank’s representatives.

The bank eventually sought the help of a third-party entity to assist it with completing other aspects of the project. The bank shared certain information with the third-party developer via emails (on which the developers were copied) including aspects of the confidential information from the proposal document.

The relationship between the developers and the bank started to break down over time. Eventually, the developers terminated the joint venture agreement, for reasons unconnected with the breach of the confidentially clause. Thereafter, a suit was brought against the bank claiming breach of confidence and seeking damages.

Findings of the Court

Despite the bank’s argument that it did not, in fact, sign the relevant parts of the documentation that imported confidentiality, the Court was willing to construe the overall circumstances as importing a duty of confidentiality. The Court arrived at this decision following the approach  to contractual interpretation espoused by the Privy Council in AG Belize v Belize Telecom.

Quick background: that case held that in appropriate circumstances, a court can read implied terms into contracts where it is obvious that the parties intended those implied terms to be part of the contract between them.

The Court, notwithstanding the lack of signature on behalf of the Bank, was willing to accept that there was a confidentiality agreement. It declined, however, to enforce it in the circumstances of the case.

The Court reasoned that the confidentiality agreement should not be enforced since the conduct of the developers indicated that they had acquiesced in the sharing of the confidential information with a third-party. The Court was moved by the fact that the bank had copied the developers on emails wherein the bank corresponded with the third-party developer. In those emails, the information which the developers deemed confidential was shared.

Despite this knowledge that a third-party was being provided with the information which the developers were asserting was confidential, the developers did nothing to enforce the right to confidentiality during the life of the contract. In the Court’s estimation, this appeared fatal.

Lessons for ICT Entrepreneurs

  1. The most important lesson here for app developers and others in the ICT space – ensure that your conduct aligns with your contract. If after entering a contract, the parties acknowledge that the expectations and outcomes have shifted meaningfully from what was initially agreed, it makes sense to expressly agree an addendum to the contract, reflecting the new state of affairs. If not, the parties run the risk of having a court belatedly assuming, on their behalf, what they must have meant.
  2. Ensure that your contracts are expressly agreed to by all the parties; don’t just rush to get to work. Some record of what has been agreed to must exist. A signature is ideal but even a confirmatory email can suffice, depending on the circumstances.
    The developers in the Aswan case may be considered lucky that the Court was willing to find in their favour that there was a confidentiality agreement between them and the Bank, despite the Bank’s representative having never signed the documentation. A more conservative court may well have gone a different route. Going forward, developers and other service providers should be careful to do all the formalities, including getting the signature (or equivalent record of agreement) of the other parties to the contract.
  3. Although the two developers referred to themselves as ‘HMA Solutions Limited,’ they sued the bank in their own names. It is, therefore, likely that they were using ‘HMA Solutions Limited’ as a mere trading name at the relevant time.
    The lesson here: the capacity in which you contract has very practical, everyday consequences, including whether your liability is personal. For example, lets say you entered a contract in your personal capacity and following a breach, you sue the other party in court. If you lose the claim, the cost order of the Court will likely be enforceable against you personally. By contrast, if you entered into a contract via a company you own, separate legal personality dictates that you would not be personally liable for any adverse outcomes.
    Note, this isn’t saying a corporate vehicle like a limited liability company is suitable for every kind of venture. This IS, however saying that before you jump into the next potentially lucrative venture, spend a few hours talking over appropriate legal structures to employ with your advisers.

 

 

Published: The Why and How of Taking Privacy Seriously

I recently published an article with practical tips for businesses who wish to give serious consideration to privacy and protecting their customers’ data. My article appears in Vol 4 of the Exporter magazine which is published by the Barbados Coalition of Service Industries. This edition of the magazine’s theme is “ICT in a 21st Century Barbados.”

BCSI Exporter Magazine Vol 4 2017 Bartlett Morgan Privacy
BCSI Exporter Magazine Vol 4 2017 

Click here and navigate to page 21 for my article. While there,  do check out some of the other fascinating articles which cover a gamut of ICT related topics including implementing blockchain technology into financial product offerings in Barbados and ICT applications in coastal zone management.

Charles Leacock Q.C. – Internet Law in Barbados


This is a video recording of a presentation by Charles Leacock, Q.C. on the state of internet laws in Barbados.

The presentation was given at the inaugural Barbados Internet Governance Forum and does an excellent job of outlining the existing digital law legislative framework at play in Barbados. The presentation touches on the:

  • Telecommunications Act;
  • Computer Misuse Act;
  • Electronic Transactions Act;
  • Corporate (Miscellaneous Provisions) Act
  • Copyright Act; and
  • the proposed Privacy and Data Protection Act

Naturally, being the DPP, Mr. Leacock gave prominence to the operation of the Computer Misuse Act which criminalises certain activities effected via a computer system.

This is a very useful video if you are interested in coming up to speed quickly on the overall state of the law in Barbados. Other video recordings of presentations made at the inaugural Barbados IGF may be accessed here.

End note: Mr. Leacock was, at the time of the presentation, the Director of Public Prosecutions for Barbados. Sadly, shortly after this presentation, he passed away. May he rest in peace.

Notes on the Fair Trading Commission v Digicel Jamaica decision

The Judicial Committee of the Privy Council (the “Board”) recently rendered a high profile decision in Fair Trading Commission v Digicel (mirror) where it confirmed the far reaching power of the Fair Trading Commission to intervene in proposed mergers of telecommunications providers. The decision will likely give telecommunications providers further cause for pause in future bids to takeover or merge with competitor firms in the Commonwealth Caribbean.

Background

The Fair Trading Commission (the “FTC”) is empowered by the Fair Competition Act (the “FCA”) to serve as the competition authority responsible for regulating uncompetitive market practices in Jamaica.

The Board’s decision arose against the background of a 2011 merger of two of Jamaica’s three mobile voice and text providers, at the time: Digicel  and Claro. Following a complaint by the third competitor in the telecoms space – LIME (now, Flow) the FTC launched an investigation and concluded that the proposed merger would lessen competition and, ultimately, consumer choice would suffer. Importantly, the FTC also found that the benefits arising from the merger would not offset the anti-competitive effects.

Following the publication of its findings, the FTC launched  proceedings in the Jamaican Courts seeking an injunction to prevent the merger from going forward, the imposition of financial penalties and a declaration that the merger was anti-competitive.

The FTC, in approaching the courts, was, in effect, moving to enforce section 17 of the FCA which prohibit actors in a market from entering into an agreement with the effect of lessening competition.

Digicel and Claro took the position that their merger fell outside of the ambit of the FCA as they were telecoms operators and so, only the Telecommunications Act applied to their dealings. They also took the view that section 17 of the FCA did not specifically deal with mergers and so the FTC could not proceed on that basis.

The court dispute could, therefore, be reduced to three specific issues:

  1. Does the FTC have jurisdiction to intervene in the market for telecommunications services?
  2. Does section 17 of the FCA  apply to mergers at all?
  3. Does section 17 of the FCA apply to transactions approved by the Minister under section 17 of the Telecommunications Act?

On point 1, the High Court found (pdf) that the two regimes of the FCA and the Telecommunications act, acted in parallel. The Court of Appeal (pdf), in a decision authored by Harris JA, agreed. On point 2, the Court of Appeal disagreed with the High Court’s finding that section 17 of the FCA was not limited to anti-competitive conduct effected between independent entities and extended to those resulting in the elimination of a competitor in a market. On the third point, the Court of Appeal also reversed the High Court judge’s decision that section 17 of the FCA also applied, even though the relevant government minister had given his permission pursuant to section 17 of the Telecommunications Act.

Privy Council Decision

Before the Board, Digicel argued that they were governed, primarily by the ambit of the Telecommunications Act and not the Fair Competition Act and so, in the absence of a reference under section 5 of the Telecommunications Act, no jurisdiction resided in the FTC to review the decision of Digicel to merge with CLARO. They further argued that section 17 of the FCA did not, in any event, apply to mergers. Digicel also argued that the consent of the relevant government minister with authority for telecommunications was sufficient to prevent the intervention of the FTC.

The Board disagreed with Digicel and found favour with the arguments of the FTC on all three points.

Jurisdiction of the FTC
Firstly, it considered that although the Telecommunications Act was specific and the FCA was a general act, in order to prove that the specific act applied, Digicel would have to demonstrate incompatibility between both frameworks. In the view of the Board, although both acts had their own competition mechanisms, the two acts were not in fact at odds with each other but were, in fact, complementary. The Board also considered the reference mechanism in section 5 of the Telecommunications Act and deemed this confirmation of the fact that both acts operated in parallel to each other. The Board, on this basis, concluded that the jurisdiction of the FTC, pursuant to the FCA, did extend to the telecommunications market.

Applicability of section 17 of the Fair Competition Act

In respect of the argument that the scope of section 17 of the FCA did not apply to the merger between Digicel and Claro, the Board found that it did apply. The Board considered that section 17 of the FCA serves to forbid any agreements which contain provisions that have as their purpose the substantial lessening of competition, or have or are likely to have the effect of substantially lessening competition in a market.

Digicel and Claro made a novel argument: upon merging, both companies would become part of one enterprise and, therefore, could not be guilty of concerted conduct with itself. The Board took the view that section 17 of the FCA did not only apply to concerted conduct *after* the agreement was entered into between the parties. Rather, at the point when the agreement to merge is contemplated, so long as the effect falls within section 17, it is open to review by the FCA.

Importantly, also, the Board, inline with case law from the European Union, reasoned that section 17 of the FCA, despite not mentioning mergers expressly, did, in fact, apply to mergers.

 

Effect of Minister’s approval of a licence under the Telecommunications Act

Finally, Digicel argued that to the extent that section 17 of the Telecommunications Act was the only provision in either act that expressly dealt with mergers, once Digicel had complied with that provision, there was no scope for the FTC, which was operating under the ambit of the FCA to intervene in the merger. Unsurprisingly, given its reasoning on prior issues in its decision, the Board found that the minister’s approval under the Telecommunications Act did not operate in isolation and compliance with the FCA’s regime was also a necessary prerequisite to approval of its merger activities.

Final Thoughts

Following the decision, Digicel has already taken the view that the merger was not anti-competitive and so, it has no case to answer.

By confirming that the FCA operates in parallel with the Telecommunications Act, the Board’s decision necessarily means that, going forward, operators in the telecommunications space in Jamaica must be mindful of the contents of both statutory schemes when potential mergers and acquisitions are being contemplated.

More broadly, the decision is valuable for confirming the broad-based authority of competition authorities, with similarly broad statutory backing to Jamaica’s FCA. If a merger agreement is being contemplated between significant actors in a market, that agreement can lawfully come within the purview of the competition authority, even if the relevant statutory framework does not expressly provide for this power.

In essence, regardless of market, all firms operating in the jurisdiction are bound by the same competition framework.

It may be argued that the Board has taken a broad, purposive reading of the FCA and, in doing so, ascribed to the FTC, powers over mergers which it did not expressly have before. Even if true, this would only serve to bring Jamaica inline with the modern, accepted approach in developed market-driven jurisdictions  to the interpretation of similar statute.  This is a hard position for most to argue against.

Disclosure of Trinidadian Minister’s telephone records reiterates need for privacy legislation

Newsday Trinidad reports that the Telecommunications Authority of Trinidad and Tobago (TATT), has issued a reminder to the telecos in the twin-island republic to protect the data of their customers.  TATT’s reminder comes in the wake of the public disclosure of the telephone records of a government minister. 

The minister’s unfortunate circumstances aside, this story allows for a teaching moment about the potential value of having privacy and data protection legislation. 

Trinidad’s Data Protection Act

Trinidad and Tobago, at the time of writing, is among a handful of jurisdictions in the Commonwealth Caribbean to have passed  comprehensive privacy and data protection legislation. Trinidad’s Data Protection Act was partially brought into force in 2011. Despite some criticism (for e.g. here and here) the act offers fairly comprehensive protection for the personal information of citizens of the twin-island republic.

Practical Benefits

The act provides all individuals in Trinidad with direct recourse against any entity or person  that either: i) wilfully discloses personal information in contravention of the act; or ii) collects, stores or disposes of personal information in a manner that contravenes the act.

The act establishes a data commissioner’s office. This commissioner holds responsibility for not only investigation and enforcement, but also, public awareness about privacy.  

This means that: i) recourse is no longer against just public bodies; ii) there is no longer a need to bring a convoluted (and comparatively expensive) constitutional motion to protect against a breach of privacy; iii) the scope of that privacy right protection is not limited (for e..g. what expressly constitutes private information); iv) there are severe enough fines to make the protection of individuals’ private information a priority for entities that handles private data; and v) 

the notion of privacy is more likely to become part of the public agenda going forward.


Act not fully proclaimed

Here is the kicker, however: The Trinidad Data Protection Act has never fully been proclaimed. At last check, only the provisions concerning the establishment of a data commissioner’s office was brought into effect. Therefore, most of the critical sections of the act are not enforceable. 

What this means for the goodly minister is that, with the best of intentions, his options for recourse are limited. In effect, despite the existence of the act on paper, Trinidadians currently have no real recourse when their personal data is handled in a manner that breaches the act. 

Trinidad and Tobago is considered one of the regional leaders in advancing the information society. Practical signs point to: 

  • the establishment of a multi-stakeholder advisory group for crafting policies of the .tt domain;
  • domestic e-commerce entities like Trini Trolley; and 
  • being the first (and only at the time of writing) English-speaking Caribbean country to have sophisticated internet-based app, Uber

This is clearly a nation that intends to advance its information society agenda. It therefore behoves the twin-island state to give effect to the fundamental aspects of the act as it continues its developmental march. 

Much needed privacy act coming to Jamaica

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A privacy and data protection act is to be tabled in Jamaica in the next three months. Andrew Wheatley, the government minister responsible for technology, made the disclosure via the Jamaica Information Service website recently.

This is the third such public announcement by the Minister in five months (See here and here). Presumably, therefore, there is substance to the minister’s statement.

The importance of privacy and data protection legislation cannot be underscored enough. Only this morning, the Jamaica Gleaner ran a story highlighting a significant data breach involving the confidential information of students at 16 high schools in Jamaica. Unfortunately, as there is no legislation in place, there is currently no allocation of privacy-related rights and obligations among the various actors involved in that incident.

Privacy and data protection legislation is also important in the context of a nation’s digital-era development. It is accepted that trust is a critical component in developing a domestic digital economy, since people tend to only engage in e-commerce where there is a high level of trust.

The presence of a statutory privacy safeguard, such as a privacy act, is critical to developing trust among users of the internet. Those users will more likely trust that their data will not be mishandled and, importantly, that they can have recourse in the event of a breach. Therefore, when local entrepreneurs provide services for pay to local consumers in Jamaica, those consumers are more likely to purchase the offerings. The more local goods and services purchased online, the more the domestic digital economy develops.

Only this week, UNCTAD referenced research indicating that “Internet users are increasingly concerned about their online privacy, and that 49 percent of users polled say lack of trust is their main reason for not shopping online ”.

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Jamaica is not starting from scratch where privacy legislation is concerned. Its Constitution was recently amended to more expressly secure the individual’s right to privacy at section 13(3)(j) of the Charter of Rights. However, it was always known that this was insufficient since the Charter of Rights’ provisions are next to impossible to enforce against non-state actors. A specialist act that covers privacy and data protection was still necessary since it would, at a minimum, extend privacy protection to cover abuses by non-state actors, including other private citizens and commercial entities. Additionally, a substantive privacy act will likely outline in detail: the privacy rights being afforded to individuals; the reasonable limitations on those rights; and the responsibilities of those who collect and store the private information of others.

 

Minister Wheatley, perhaps, has these considerations in mind since he indicated that the proposed legislation will:

…govern the collection, regulation, processing, keeping, use and disclosure of certain information in physical or electronic form.

The legislation will seek to set out the rights of the individual, with respect to their personal data. This will include, for example, the right to confirm whether or not personal information or data is being processed by an organisation.”

The sooner Jamaica passes comprehensive privacy and data protection legislation, the sooner its citizens can be offered true privacy protection. Importantly too, a domestic digital economy will edge that much closer to reality.

Aslam v Uber and a few implications for Uber’s entry into Trinidad

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A first-instance Court in the United Kingdom ruled

in October 2016 that the relationship between, ride-sharing app, Uber and its drivers was that of an employer and employee. Uber unsuccessfully contended that its drivers were merely independent contractors. The case –  Aslam v Uber BV [2017] IRLR 4 – naturally sent ripples throughout the gig-economy, given the wider implications for similar gig-apps.

One of the larger potential implications of that decision is that the business model of Uber and other gig-apps will have to be adjusted to account for the fact that they now have more employees. With drivers as employees and not independent contractors, it means, for example, that those drivers now enjoy entitlements like minimum wage and leave pay.

Uber, like many hugely successful internet giants, operates a multi-side platform. The basic idea is, distinct groups of users of the platform provide network benefits to each other (think of Google’s ads. Those who buy adwords aren’t the same as those who are searching on Google but both are ‘customers’ of Google). In Uber’s case, one distinct user group would be the drivers and the other, passengers. Broadly, the Aslam case, potentially means that Uber is being asked to merge its role with one of it’s target groups. In the result, Uber would be forced to abandon it’s role as a middle-man providing a two-sided market platform in favour of the less dynamic, traditional seller-to-purchaser sales

model.

Another implication, albeit indirect, is that Courts in other jurisdictions may opt to follow the U.K.’s position. The result: Uber’s business model and bottom-line could be impacted far beyond the shores of England. In this prevailing context, Uber recently announced its debut in Trinidad and Tobago; a first for the Caribbean region. On the face of it, a legal development in the United Kingdom has no direct connection with what happens in the twin-island republic. However, on deeper reflection, one will recall that Trinidad and Tobago’s legal system has its roots in – and shares a common legal heritage with – the U.K. via the Common Law. This, therefore, means that decisions made in U.K. courts, while not binding on any Trinidadian court, are at least, highly persuasive. 

Another minor matter to note, Trinidad, like the U.K., has a general provision in its laws allowing for the payment of a minimum wage. See generally, the Minimum Wage Act  and the Minimum Wage Order 2015. Accordingly, on the face of the current statutory regime, any future designation of Uber as an employer, at least theoretically, opens the doors to drivers in Trinidad, like their colleagues in the Aslam case, being entitled to a minimum wage.

Before getting too far ahead of ourselves, it is important to note that Aslam v Uber is the subject of a pending appeal by Uber. Accordingly, there is no certainty that the decision of the ERT will, ultimately, stand. 

Future developments in Aslam may, ultimately, force a reworking of Uber’s business-model in a number of its markets including Trinidad and, depending on the outcome, may well see it pull out of some of those markets. Therefore, how it navigates this and dozens of related legal battles targeted at its model will likely determine the continued meteoric rise of the gig-economy juggernaut or… the beginning of its demise.