Data protection bill faces human rights challenges

| 17/12/2014

(CNS): Plans by government to introduce a data protection bill next year remain in question as human rights experts say the final draft of the proposed legislation falls foul of Cayman’s Bill of Rights. The chair of the Human Rights Commission has warned that the draft law is too complicated and most people will not be able to understand it. The final consultation period on the bill is now closed but HRC Chair James Austin-Smith said the commission wants to see more effort placed on public education because, unlike the FOI law, this legislation applies to the private sector as well as public service. Since it will impact the wider community, everyone needs to understand just how significant it could be and what could happen if they breach it, unwittingly or otherwise.

In its submissions on the proposed law, during what has been described by officials as the final consultation period on the final draft of the law, the HRC said it still has significant concerns about it. The HRC has pointed to the complexity and warned that efforts to simplify it have seen many of the fundamental protections removed.

The commission has raised concerns about the removal of a right to trial in some circumstances and the fact that the law is based on an outdated 1995 European Directive that doesn’t account for the advances in communication technology. The HRC also points our that, given the significant fines and draconian punishments proposed in the bill, it presents major human rights challenges.

While the law is based broadly on the English and Welsh Data ProtectionAct 1998, albeit with significant changes, the HRC said it creates a number of difficulties for the Cayman law. That UK law has come in for major criticism because it is already way behind the times when it comes to the internet and social networking.

“There have been huge advances in information technology and globalisation which have impacted data retention since 1995. As a result, in 2012, the European Commission announced a new draft legislative package to regulate data protection,” Austin Smith wrote on behalf of the commission, noting that it will be sometime next year when that new law emerges.

While the Data Protection Working Group has tried to anticipated amendments, if Cayman enacts legislation ahead of the changes it will need to be redrafted if the authorities here want to remain in line with the European model.

Basing the local legislation on what Austin-Smith described as “convoluted and complex legislation even for lawyers” does not bode well for the man in the street.

“The HRC remains concerned about the way in which this legislation is drafted and it is envisaged that the broader community will have great difficulty in understanding, and therefore fulfilling their duties, under the Revised Bill should it become law,” he warned. 

The HRC believes that in an effort to simplify the complex law in this latest draft the working group have removed some “fundamental protections” creating “significant human rights concerns” and giving enormous power to the data protection commissioner, who, it is anticipated, will be the information commissioner.

Section 51 of the revised bill provides for a sentence of imprisonment of up to 5 years for breach of its terms. The HRC described it as a draconian penalty, but the real human rights concern is the removal of a right to appeal, forcing aggrieved parties to seek judicial review.

“This is an extremely regrettable provision. It means that the ‘appeal’ process in Cayman will be expensive and time-consuming. Lawyers will almost certainly be required. It also, effectively, introduces a reverse burden of proof requiring the aggrieved applicant to demonstrate that the Commissioner has acted contrary to the principles of lawful administrative action,” Austin Smith wrote.

The revised bill also states that the commissioner can certify to the courts that a person “shall be deemed to have committed an offence” if they fail to comply with his or her enforcement. “This is a quite extraordinary provision,” the chair said in the HRC submission. 

“It effectively allows the commissioner, acting as prosecutor, to certify guilt and send a person for sentencing – removing the right to a trial. This provision is fundamentally contrary to all accepted international human rights norms, various international treaties and Cayman’s own Constitution. The HRC urges the DPWG to remove this provision from the Revised Bill and introduce the right to a trial for those accused of a breach of the law.”

Although government officials at the start of the last public consultation, which is now closed, noted that this was the final draft for discussion, it may still change before it goes to Cabinet and before it becomes a white paper.

The submissions and comments made over the last two months by interested parties and stakeholders will now be considered by the data protection working group who may still make significant changes before the law goes before Cabinet next year.

See the HRC submission and the draft law below and for more information visit dataprotection.ky

Category: Local News

Comments (8)

Trackback URL | Comments RSS Feed

  1. Anonymous says:

    Mr. Austin-Smith is absolutely correct. There has been no or very little comment form Government on this serious matter and virtually no public consultation. This is a critical issue for privacy and must receive thorough scrutiny before being implemented. Sorry but I don't think we can't trust our present Cabinet to protect our people from any negative results of this proposed Bill, as whatever FCO wants, our Puppet, sorry, our Premier will bend to, as will the other puppets in Cabinet – in the name of re-building better relations with the UK.

    Please do not assume that this Bill in it's present form is innocent – follow what's going on in the UK social and political arenas with privacy invasion concerns. Watch it, Little Brother has already arrived in our midst with HE's sole authority to authorize electronic surveillance under certain circumstances. Who is monitoring the monitors and determines when/if they cross the line or work outside the parameters of HE's authority? Knowing the types employed in the Home Affairs Ministry, their secret society associations and external influences, it might shock us how much surveillence is presently being conducted without HE's knowledge and approval. BIG Brother soon come!!

    The HRC is right to be concerned and so should we all.

    • Anonymous says:

      We already know that Operation Tempora saw to the GCHQ's tapping of submarine cables.  It has been in the news for a couple years now, and this is the world we live in.  This 51 page data law is supposed to separate and protect certain types of Cayman-originating private personal data from business data that might otherwise be blindly handed over to any authority that should ask for it.  It protects Cayman residents against the sale of their personal data and health records.  All good stuff.  It is also worded to conceal and protect the background for any civil servantsthat might be bestowed a special honorary degree, Crown dignities like OBE's, or any emails that might suggest conflicting motivations for huge donations eg. to a church etc, and protections against journalists that might want to print what happened.  Clearly there are some MLAs that feel they require these special explicit protections, but I cannot imagine who.    

  2. UHUHUH says:

    Am I correct in saying that there is a grammatical error in the following taken from the latest draft of the DPB? Read the following!

    (6) A person commits an offence if, in purported compliance with a requirement made under subsection (1), he (a) makes a false statement that the person knows to be false in a material respect; or (b) recklessly makes a statement that is false in a material respect, [and] is liable to a fine of one hundred thousand dollars or to imprisonment for a term of five years, or to both.

    Should not the word "and" in [b] be removed? I'm not a legal mind, but if I can find errors such as this while scanning through the final draft which it is set to go before the legislative assembly for approval next year, makes one wonder how many if any more errors are in the draft.

    • Anonymous says:

      No, it should not be removed.

      It is necessary for the sentence to essentially read "A person commits an offence if, in purported compliance with a requirement made under subsection (1), he does A or B, and is liable to a fine of…" Even shorter, the sentence has a bunch of stuff in the middle to qualify it, but: "A person commits an offence… and is liable to a fine of…"

      The "and" is to join the fact that the person has committed an offence with his punishment.

      • Professor Hawks-Bill says:

        I'm not a legal mind 09:39 but I do know something about proper grammar!  Since the word "he" has been used in both A and B.  It should simply read thus: ….. "he" is liable to a fine of …. 

        • 09.39 here says:

          No, apparently you do not. A and B are conditional clauses, so the sentence without A and B must also be grammatically correct.

          "And" is necessary to join the two main clauses (which are, as stated above, the offence and the punishment). Otherwise, without either of the conditional clauses in between, the sentence would read "A person commits an offence is liable to a fine of…" Even if you include the "he" that you appear to be implying is already present (it's not – it's in the conditional clauses), it would read "A person commits an offence he is liable to a fine of".

          Even with one of the conditional clauses (which are alternative, so let's choose A), without "and" the sentence would read: "A person commits an offence if, in purported compliance with a requirement made under subsection (1), he makes a false statement that the person knows to be false in a material respect, is liable to a fine of one hundred thousand dollars or to imprisonment for a term of five years, or to both."

          If the provision began "A person WHO commits an offence" then you wouldn't need the "and", but then that provision would only describe the punishment – not provide for the offence itself.

          This type of structure is quite common in laws and it's often difficult to understand in the first read-through, even to "legal minds". This is just one of example of a tendency that leads some people argue laws are inaccessible to the average citizen. However, laws also have to be clear in order to be enforced and should ideally be succinct, so it's hard to balance the need for precision with the desire to be accesible and I don't envy the legal drafters.

          • Professor Hawks-Bill says:

            Thanks 09:39 @ 10:43 for the clarification of those clauses from a legal standpoint. Over the years I have come to the conclusion that those who write the laws that govern us have intentionally written them in such a manner as to make it difficult for the average person to comprehend. Thus they will then need the services of a legal mind to interpret the complicated version of a simple sentence!

            May I suggest a good read entitled "The Law" by Federic Bastiat in which he speaks of the "injustices" of the written laws that are purported to deliver "justice" . 

            May You enjoy your Christmas with friends and family!