Jamaica - RSF concerned over proposed Data Protection Act's potentially "chilling effect" on press freedom

Joint Select Committee, Data Protection Bill

℅ Clerk to the Houses of Parliament

Gordon House

81 Duke Street

Kingston, Jamaica

Washington, DC

May 16, 2018

Dear Chairman Wheatley,

Reporters Without Borders (RSF), an international non-governmental organization dedicated to defending press freedom and freedom of information, is writing to express concerns regarding Jamaica’s proposed Data Protection Act. While we do not dispute the existence of this Bill, which is meant to protect the private data of consumers, the Bill does not adequately distinguish gathering “data” for journalistic activities from gathering data for regular commercial purposes. RSF believes the Bill may have a chilling effect on press freedom that could outweigh its benefits.

We acknowledge and appreciate that the drafted legislation considers press freedom, as indicated by section 37, which exempts journalists from a number of provisions data controllers—those who obtain, process, or use data—are obliged to follow. However, we believe the Bill should clearly exclude journalistic activity from its scope. A clear blanket exemption for journalists should be provided instead of a handful of provisions from which journalists are exempt.

Without a blanket exemption, the Data Protection Act as it is currently written is broadly-worded and potentially threatening for journalists and media outlets. It says it aims to protect “sensitive personal data,” including “political opinions, philosophical beliefs, religious beliefs or other beliefs of a similar nature,” all of which are examples of subjects journalists focus their reporting on. How can journalists report on matters of public interest and hold those in power accountable under such a law?

In addition, the Bill gives the power to enforce, exempt, and penalize data controllers—such as journalists—to a Commissioner who “shall act independently” and “shall not be subject to the direction or control of any person or other entity.” While the notion of independence from political interference is commendable the Bill doesn’t identify checks and balances, thus raising the concern that the Commissioner has too much power to decide how this legislation would apply to journalists.

The Bill outlines a number of obligations placed on data controllers that, if applied to journalists or media outlets, could interfere with journalistic activities. Submitting an annual assessment of all data obtained by a news outlet, as expected under section 47 of the Bill, would be immensely burdensome, especially on freelance journalists or smaller media organizations. Furthermore, section 49 says an enforcement notice can order a data controller to allow the Commissioner to examine documents, equipment, data processing methods, or employees to determine whether a data controller is complying with data protection standards. Can a professional news organization operate independently if it may be required to open up its data for inspection in order to investigate a mere allegation of the violation of data protection standards? The implications of such a provision could be detrimental if applied to newsrooms and investigative journalists.

Meanwhile, the Bill’s Commissioner has broad enforcement powers, including section 46, in which data containing opinions must be destroyed if the Commissioner decides those opinions are based on inaccurate data. Such an enforcement power can be dangerous in its subjectivity and may discourage or prevent journalists from writing about topics that don’t fall in line with the Commissioner’s political leanings, beliefs, or biases. And while the Bill instructs the Commissioner to consider “individual damage or distress” when deciding whether to use its enforcement powers, it doesn’t define these terms, nor does it direct the Commissioner to weigh this against the public’s interest in press freedom.

In addition to the aforementioned concerns, the harsh penalties journalists could face for violating certain provisions—which can include millions of dollars or several years in prison—illustrates the potentially devastating impact the Data Protection Act could have on Jamaica’s media environment. Thus we urge you, Mr. Chairman, to consider revising this legislation to include a blanket exemption for journalists with amended exceptions to this where deemed necessary, given that their ability to gather and report news will be unaffected.

We thank you in advance for the attention you give this letter. We remain available to discuss any further questions or concerns you may have.

Sincerely,

Margaux Ewen

Executive Director, RSF North America

CORRECTION: A previous version of this letter outlined RSF's concerns with section 22 of the proposed Data Protection Act, which says data controllers must obtain data fairly, legally and directly from the data subject, and that the subject must consent prior to the processing of “personal data” or “sensitive personal data.” According to section 37, the aforementioned provision excludes journalists. We have since edited our letter to reflect this fact.