Top Legal Tech news of 2019
2019 was a busy and exciting year for law and technology in the Caribbean region. Here's a recap of some of the major developments in law and technology for the year, in no particular order.
1. NIRA ruling
In March, Jamaica's Constitutional Court handed down the landmark decision which determined that the National Identification and Registration Act was unconstitutional. The court held that the Act's mandatory provisions of requiring Jamaican nationals who resided in the country to submit their biometric data was not reasonably justifiable in a democratic society and amounted to a breach of privacy. Given the scope of The NIDS or NIRA Act in compulsorily mandating citizens to submit biometric data to the State, this decision represented important jurisprudence in privacy law for the region and provides a guideline for other Caribbean countries as to how far they should go in drafting similar legislation as the collection of citizens’ biometric data becomes of increasing interest to regional leaders.
2. E -Defamation and Use of Inappropriate Images of Persons Without Consent
2019 saw the continued rise of individuals using social media to defame persons and the use of sensitive images of persons without their consent. In the case of defamation, High Courts in Trinidad and Tobago, Jamaica and Belize made rulings determining that the Claimants of such actions were indeed defamed. In the case of these countries, notable cost orders were awarded, which will certainly inform future cases.
In relation to use of explicit or sensitive images of persons without consent, numerous jurisdictions including Jamaica, Trinidad and Tobago and Guyana, continue to battle with this growing problem. Persons were charged with circulating nude and or sensitive images of persons without consent.
3. Data Protection Legislation and Cybercrime Legislation
Trinidad and Tobago continues to struggle to garner support for the passage of a Cybercrimes Bill. This, in light of an incident where sensitive images of a woman were leaked in December.
Jamaica
Politicians, advocacy groups and other special interest groups continued to debate over several provisions of the Data Protection Bill which the government had hoped to pass by the end of the year. Some concerns/criticisms raised with the Bill included:
Health professionals argued that there were gaps in some of the definitions set out in the Bill such as the meaning of a health professional and medical records and that the Bill failed to take into account the nuanced capacities of data controllers which could range from a medium size non-governmental organisation to a large health care provider. As such, it was argued that some of the more onerous penalties for data controllers should be reconsidered.
After criticism of the provision by Opposition Member of Parliament, Mark Golding, the Joint Select Committee agreed that public registers should not be exempted from mandatory registration as data controllers.
Telecommunications providers raised concerns that the Bill in its current form could restrict marketing campaigns to its customers and potential customers due to the Bill requiring that such companies obtain express consent from their customers before including customers in any such campaigns. Telecommunication providers argued for an exception to allow them to do so without obtaining its customers consent.
The Joint Select Committee recommended that journalism should be defined by the Bill. In 2018, The Press Association of Jamaica argued for journalists to be exempted from the Data Protection Bill.
The Joint Select Committee recently expressed concern over a section in the Bill which in its current form, made it unlawful for employers to ask employees to provide health records. It was expressed that certain jobs required employees to disclose their medical information to their employers.
The NIDS ruling may have also affected Government's timeline for passing the Bill as it was expected that the Data Protection Bill and the now void NIRA Act would complement each other.
Barbados
Barbados passed its Data Protection Act in June, after debates before a Joint Select Committee. The passing of the Act was initially delayed after concerns were raised regarding adequate protection for children's data and privacy and sufficient education to the public on the obligations under the Act. The Act’s many core principles were modelled from the European Union's General Data Protection Regulation.
Belize
After a string of instances of cyberbullying and harassment as a result of sensitive images of persons being leaked, prominent cybercrime Attorney Lisa Shoman and lawmakers called for cybercrime legislation in the country.
4. Governments' Use of CCTV and Facial Recognition Technology
Guyana, Trinidad and Tobago and Cayman Islands have made their intentions clear on using CCTV footage to tackle crime. Bahamas also installed hundreds of new CCTV cameras and indicated some will be installed with facial recognition technology. In the case of Guyana, some controversy arose as the result of the Government's announcement to use CCTV and facial recognition technology as apart of its Safe City initiative. Privacy concerns and lack of transparency were issues raised as a result.
Jamaica – Advocates continued to urge government to pass legislation governing the Jamaica Eye Programme (a surveillance program) which commenced last year. Government maintained its position that existing legislation was enough to regulate the programme.
5. Data Breaches and Online Scams
As cybersecurity and cybercrime attacks became an area of greater concern to governments in the region, this year seemed to be a tough year for banks who faced increased criticism and publicity over several breaches which happened this year. Online scams also continued to make headlines this year and this is of concern to law enforcement. Some of the top stories here include:
In August, customers of several banks based in Barbados were the victims of a string of ATM hacking incidents.
In Jamaica, it was reported that banks were losing an average of JM$4 million as a result of hacking and data breaches and about two cyberattacks per week were occurring.
The Data Protection Commissioner of Bahamas reported a 10 per cent hike in data breach complaints by commercial bank account holders in that jurisdiction.
In Jamaica a man was sentenced to over 400 years for a telemarketing scam.
6. Freedom of Information
This year, some jurisdictions faced controversies surrounding amendments to their Freedom of Information legislation. Interestingly, in both instances, the amendments concerned extending the time required for government to make documents public. Another jurisdiction continued to advocate for the importance of a Freedom of Information Act in that jurisdiction, while a notable court decision was made in respect of a public authority.
Jamaica - In November, the Government came under immediate and immense scrutiny when it attempted to pass an amendment to the Access to Information Act extending the time requiring government to make Parliamentary documents public from 20 years to 70 years. The government subsequently withdrew the proposed amendment.
Trinidad
Earlier this year, before amendments to the Freedom of Information Act were debated before Parliament, the High Court held that the Telecommunications Services of Trinidad and Tobago was a public authority under the Act and therefore the general public had a right to access their official documents, subject to certain exceptions.
The Government also faced a barrage of criticism following attempts to pass amendments to the Freedom of Information Act which many civil organisations and advocates, including the Assembly of Southern Lawyers, called a retrograde step for society. President of the Assembly, Michael Rooplal argued that in the "digital age there could be no justification for the proposed extension for accessing information. The government also withdrew the proposed amendments following public pressure.
Dominica - A local trade unionist urged the Dominica Media and Communication Association to push for a Freedom of Information Act for the country in light of journalists continuing to face difficulties in obtaining information from government and public authorities.
7. E-filing and Court Management Systems
Several jurisdictions made positive steps in implementing online court management systems, e-filing and electronic payment systems, all of which will improve efficiency, access to justice and reduce the length of time in interacting with the various court systems. While not a court management system, one jurisdiction began using software in order to update many of its outdated laws.
Organisation of Eastern Caribbean States (OECS) - The Eastern Supreme Court launched its E-Litigation Portal in July. This marks a welcome and important development as the Supreme Court services the entire OECS region.
In the Bahamas, persons are now able to electronically file actions before the Industrial Tribunal.
Barbados signalled its intention to implement e-filing software for its High Court.
In Jamaica, Minister of Justice, Delroy Chuck announced that the Law Reform Department would be using a Legislative Production Management system software in order to update the Islands legislation in dire need of refreshed penalties.
8. Digital taxes
The latter half of the year saw increased discussion and debates surrounding taxing oversees companies who interact with and conduct business transactions with Caribbean nationals. Notably, As discussions of digital taxes take place at the CARICOM and international levels, expect this to be a continuing trending issue for the Caribbean in 2020.
Barbados - After months long delays of the implementation of VAT on online transactions, it was announced that collection of VAT on these transactions will commence from January 2020.
Trinidad - After complaints of increased taxes being levied against it, as opposed to online companies, a representative from Ansa McCal launched a national and perhaps regional discussion surrounding digital taxes. Government's position at the time of the complaints was that it was not easy to impose taxes on online platforms.
9. Drone technology
Countries such as Trinidad and Tobago, Jamaica and Guyana utilised drone technology in their crime fighting efforts while St. Kitts and Nevis and Jamaica signalled intentions of passing legislation governing the use of drones.
10. Cryptocurrency, digital currency and regulations
Several jurisdictions this year announced their intentions to either utilise cryptocurrency or to issue digital versions of their national currency.
While the Bahamas announced earlier in the year that it intended to develop its own digital currency, in light of Hurricane Dorian, buzz surrounding the development of the digital dollar was renewed. Bahamas also announced its intention to regulate digital assets through the Digital Assets and Registered Exchanges Bill. This Bill has not been passed as yet.
Barbados based fintech company Bitt Inc. had a busy year. In February, the Eastern Caribbean Central Bank announced its partnership with the company to conduct a blockchain issued Central Bank Digital Currency (CBDC) pilot within the Eastern Caribbean Currency Union.
Bitt also successfully completed its Regulatory Sandbox programme in Barbados, which concluded earlier this year and was guided by the Central Bank of Barbados and the Financial Services Commission. It became the first company to complete such a regulatory sandbox for fintech products and services.
In April, the British Virgin Islands partnered with a blockchain start-up. The partnership hopes to provide a rapid response during emergencies in providing a crypto currency payment method.
In 2020, its likely that we'll continue to see digital currency, blockchain technology and cryptocurrency making headlines. We can also expect more countries to raise concerns about cybersecurity, data protection legislation and policies and digital taxes as these areas have financial, economic and trade related implications.
