Revamped spectrum rules coming to the Eastern Caribbean

📸: Mary Theresa McLean from Pixabay 

The Eastern Caribbean Telecommunications Authority (ECTEL), the supra-national regulator for a number of Eastern Caribbean countries, is considering further revisions to its spectrum management plan (“SMP”).

The ECTEL SMP divides the radio frequency spectrum of the ECTEL Member States into several frequency bands and designates the general purposes for which each radio frequency band can be used.

The proposed amendments to the SMP seem mostly geared towards aligning frequency allocations with international best practices. The proposed amendments are based on the International Telecommunication Union’s Region 2 Allocations and also seem to draw inspiration from the Federal Communications Commission’s move to free up the 700mhz band in the USA, in the wake of the switch to digital television in that country.

The current consultations will result in the third revision to the SMP. It was originally published in 2006 and later amended in 2012.

Feedback closes on August 6, 2012.

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Barbados’ telecoms regulator issues new enforcement policy

Telecoms tower. 📸: SXC.hu

Barbados’ Fair Trading Commission (the “FTC”) regulates aspects of the telecommunications sector in that East Caribbean jurisdiction (among other functions). The FTC has issued guidelines for entities that may find themselves embroiled in disputes with that regulator over anti-competitive behaviour or consumer protection practices.


The guidance document – Enforcement Policy for Competition and Consumer Protection Matters (which, by the way, sounds a lot better than it’s technical name: ‘Document No FTCGL/EP-FCCP/2021-01’) – was officially issued on July 1, 2021. The Enforcement Policy will not enter into force until August 1, 2021, however. This will give affected parties some time to digest the thrust of the policy.

In addition to articulating the FTC’s enforcement objectives, the Enforcement Policy also outlines the considerations of the FTC in determining whether to pursue enforcement action. Where the FTC has determined that some enforcement action is necessary, guidance is also provided on which enforcement mechanisms the FTC will likely apply in particular situations.

The FTC’s Enforcement Policy will be guided by five principles:

  1. accountability;
  2. consistency;
  3. proportionality;
  4. targeting; and
  5. transparency.

The perceived benefit of the Enforcement Policy for the business community is twofold. In the first instance, there will be far greater certainty amongst members of the business community in understanding how best to avoid enforcement action. Secondly, where enforcement by the FTC is inevitable, the Enforcement Policy will introduce an element of predictability in navigating the enforcement process.

File name : FTC-Enforcement-Policy-Effective-Aug-2021.pdf

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Tracking Net Neutrality: What have Caribbean Governments been up to?

📸:: Nevarpp via istockphoto.com

Net Neutrality is, at its core, an idea rooted in anti-discrimination. Simply put, everyone involved in providing internet-based content and services to internet users should treat all data transmitted over the internet equally.

Whether Net Neutrality should be observed and, if observed, on what terms, are vexed questions. Typically, regulators tend to support the imposition of Net Neutrality standards because of the perceived consumer protection benefits. Conversely, network operators (like ISPs) tend to oppose the limitations presented by the concept.

I’ve covered Net Neutrality in the past here and here. In this post, I wanted to quickly track major activity by governments in the Caribbean.

Continue reading “Tracking Net Neutrality: What have Caribbean Governments been up to?”

Barbados’ advanced privacy law now enforceable

Oistins Bay, Christ Church, Barbados. Photo © bartlettmorgan.com

March 31, 2021.

A proclamation issued a few days earlier has fixed that date to mark the Barbados Data Protection Act, 2019-29 coming into effect. Put another way: March 31 is when the privacy compliance landscape in Barbados will change immutably.

Continue reading “Barbados’ advanced privacy law now enforceable”

Bermuda recognises comprehensive certification mechanism for data transfers

Bermuda flag. Image source: pixabay.com

Bermuda’s Privacy Commissioner recently announced recognition for the APEC CBPR System as a certification mechanism for overseas transfers of personal data under Bermuda’s data privacy law. The move promises strong safeguards for transfers of data outside of Bermuda.

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Status of Data Privacy Laws in the Caribbean [Feb 2021]

With the recent activities around operationalising data privacy laws in Barbados and Jamaica, I thought it would be a good time to provide an update on the status of privacy laws in the Commonwealth Caribbean*, generally. I have also included, where applicable, recent privacy-related developments in the relevant jurisdictions.

TL;DR – Six jurisdictions are without any substantive laws to govern the protection of personal data. 10 jurisdictions have passed data privacy laws.

Continue reading “Status of Data Privacy Laws in the Caribbean [Feb 2021]”

Barbados and Jamaica closer to operationalising new privacy laws

Earlier this week, the Government of Jamaica advertised for a number of roles in the Office of the Information Commissioner.

Advertisement appearing in local papers in Jamaica for roles associated with the Office of the Information Commissioner
Continue reading “Barbados and Jamaica closer to operationalising new privacy laws”

Guyana set to pass impressive new law on e-commerce

Image of Kaieteur Falls in Guyana by Jolanda de Koning from Pixabay

Guyana is about to strip itself of a, no doubt, undesirable status: it is one of only two remaining Caribbean jurisdictions without a substantive e-commerce law.

The Ministry of Tourism, Industry and Commerce published a draft act – The Electronic Communications and Transactions Bill, 2019 in early October, 2020. The public comment period for the ECT Bill closed on November 2, 2020.

Continue reading “Guyana set to pass impressive new law on e-commerce”

[Intellectual Property] Significant damages award for software programmer in Jamaican copyright claim – plain English article

The Jamaican High Court has awarded significant damages, equivalent to approximately US$4+ million, to a software programmer. The bulk of the award? Interest!

Jump to:

Background to the matter

In Paymaster (Jamaica) Ltd. v Grace Kennedy Remittance Services Ltd. (mirror), the underlying grouse of the claimant was that it had copyright in a computer program that it had engaged one of the defendants – a software developer – to create. The claimant also complained that when the developer tried to sell the software to a competitor of the claimant – the other defendant – a breach of confidence occurred.

The matter came alive when an ex parte injunction (when you apply to the court without telling the other side that you are doing it) was granted against the developer in the year 2000. That is over 20 years ago; when humans still used curios like this and the Billboard chart was dominated by what have since become a series of karaoke favourites.

Eventually, the matter was decided by the High Court in favour of the programmer and the other defendant (the claimant did not own the copyright to the software; there was no breach of confidence by the software developer or the competitor to the claimant). This High Court decision was made in 2010, 10 years after the injunction was granted. The High Court’s decision was partially overturned by the Court of Appeal (no copyright ownership, but there was a breach of confidence by the claimant’s competitor) in 2015.

The matter eventually made its way to the Privy Council – the final court of appeal for Jamaica. The Privy Council basically read the Court of Appeal’s determination on the breach of confidence issue and concluded:

The Privy Council’s decision was handed down in 2017. We are now 17 years deep in litigation at this point. Stay with me.

Having held that the claimant had no copyright in the software and that there was no breach of confidence, the Privy Council’s decision meant that the matter had to revert to the High Court to determine damages. The High Court came back with its decision in 2020. That’s 20 years worth of litigation (so far)!

High Court damages decision

The High Court was asked to determine the amount of damages due to the developer flowing from an undertaking in damages given by the claimant when it obtained the injunction in 2000. For this to make sense, it is necessary to explain both injunctions and undertakings.

Injunctions

An injunction is an order from a court forcing someone to either do something (mandatory injunction) or to refrain from doing something (prohibitory injunction). The claimant in the Paymaster matter obtained a prohibitory injunction to prevent the software developer from selling the software to anyone else. Injunctions, like the kind obtained in the Paymaster matter, typically last until the dispute is determined at trial.

Undertakings

Simply put, undertakings are promises to do something. Undertakings typically arise in the context of injunctions. The party asking the court for the injunction will usually be asked to give the undertaking in return for the court granting the injunction.

A party giving an undertaking in damages to a court essentially agrees that, if the matter goes to trial and they lose, they will pay any damages due to the other party. This is significant, as injunctions are often granted at the beginning of court proceedings and typically prevent parties from engaging in activities that would otherwise be beneficial to them (for example, operating a business, leasing property or purchasing shares) until the dispute between the parties is settled at the trial.

Why are undertakings a good idea you ask? Keep in mind that injunctions tend to stay in place until the court has had an opportunity to determine the underlying dispute between the parties at trial. The idea behind the undertaking is this: if someone is prevented from doing something that was beneficial to them for a period of time and it turns out there was no good reason to have prevented them from doing it, then it is only fair (equitable) that they are compensated for the loss of the beneficial activity they were prevented from engaging in.

What the court found

The High Court in Paymaster conducted its enquiry and concluded that the developer should receive damages of J$282,259,386.80 (approximately US$2,025,512.363). The Court also determined that interest should be awarded and…. (cheap pun alert!)… this is where it gets interesting. The judge concluded that the programmer should also get interest on the damages award from August 25, 2000 to June 11, 2020. Yes, you read that right, just under 20 years worth of interest at 6% per annum!

In essence, the judge awarded interest on damages from the time of the injunction to the date of its determination. By my maths, that translates to J$335,463,347.93 (US$2,407,316.9950). As you can see, the interest on the damages award was more than the award itself.

Implications

Bespoke software solutions are actually still fairly popular at the enterprise level in the Caribbean. This means that circumstances are ripe for this kind of claim between other developers and clients to occur. Thankfully, there are a number of ways to minimise the circumstances which led to the unfortunate Paymaster litigation in the first place. I have included some of them in this note.

If you are unable to stave off this kind of litigation, the Paymaster decision holds a significant lesson, whether you are a software developer or hired one. If one of the parties has secured injunctive relief, it is important to explore practical means of resolving the underlying claim quickly.

The Paymaster case demonstrates that the longer the matter drags on, the greater the potential exposure to substantial interest for the losing claimant. Effectively, the longer the litigation continues, the less commercially pragmatic it becomes to fund it. Also, if a party obtains an injunction, but subsequently loses the substantive claim after many years, that exposure to interest on damages, in addition to legal fees and cost awards will be sizeable. Depending on the circumstances, this could prove financially ruinous.

Exploring options for short-circuiting litigation include prioritising genuine settlement talks or sending the matter to mediation. If those options aren’t viable, it may be useful to see about getting the claim determined by the court expeditiously. Many jurisdictions have mechanisms in their court rules that allow for speedy-trials. Discuss with your lawyer whether this may be appropriate for your matter.

Read the decision here (mirror)

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