The "Entity's Link or Presence in Jurisdiction" factor is pivotal in establishing the extraterritorial reach of data protection laws. It determines whether a law applies to entities operating outside the jurisdiction based on their connection to that jurisdiction, even if data processing occurs elsewhere or concerns non-residents.

Provision Examples:

Philippines: "DPA of 2012 Sec.6(b): This Act applies to an act done or practice engaged in and outside of the Philippines by an entity if: (b) The entity has a link with the Philippines, and the entity is processing personal information in the Philippines or even if the processing is outside the Philippines as long as it is about Philippine citizens or residents such as, but not limited to, the following: (1) A contract is entered in the Philippines; (2) A juridical entity unincorporated in the Philippines but has central management and control in the country; and (3) An entity that has a branch, agency, office or subsidiary in the Philippines and the parent or affiliate of the Philippine entity has access to personal information; and"

Australia: "Privacy Act 1988 Art.5B(3): (3) An organisation or small business operator also has an Australian link if all of the following apply: (a) the organisation or operator is not described in subsection (2); (b) the organisation or operator carries on business in Australia or an external Territory."

Description

The "Entity's Link or Presence in Jurisdiction" factor reflects a jurisdiction's intent to regulate data processing activities that have a nexus within its borders, even if the entity itself is not physically located there. This approach aims to protect the data privacy rights of its citizens and residents, and to prevent its territory from being used to circumvent data protection obligations.

Across the provided provisions, several common themes emerge:

• Physical Presence: A clear link is established when an entity maintains a physical presence in the jurisdiction, such as a branch, office, or subsidiary. This is exemplified in the Philippines' DPA Sec. 6(b)(3).
• Business Activities: Engaging in business within the jurisdiction, even without a fixed establishment, can trigger the application of data protection laws. Australia's Privacy Act Art. 5B(3) illustrates this, capturing organizations carrying out business in Australia regardless of their incorporation location.
• Contractual Relationships: Entering into contracts within the jurisdiction, as highlighted in the Philippines' DPA Sec. 6(b)(1), demonstrates a deliberate engagement with the jurisdiction's legal and economic framework, thereby justifying the application of its data protection laws.
• Central Management and Control: For entities not incorporated within the jurisdiction, the location of central management and control can be a determining factor. The Philippines' DPA Sec. 6(b)(2) exemplifies this, targeting entities effectively managed from within the Philippines.

Implications

The "Entity's Link or Presence in Jurisdiction" factor has significant implications for businesses:

• Expanded Scope: Companies operating internationally must assess their activities in relation to various jurisdictions. For example, a US-based e-commerce company that targets Australian customers and fulfills orders through contracts formed in Australia would likely fall under the scope of the Australian Privacy Act, even without a physical presence in Australia.
• Compliance Obligations: Entities deemed to have a link with a jurisdiction are obligated to comply with its data protection laws. This may involve establishing data protection policies, obtaining consent for data processing, and implementing appropriate security measures.
• Enforcement Actions: Non-compliance can lead to regulatory investigations, fines, and reputational damage. For instance, a foreign company found to be processing personal data of Philippine citizens without adhering to the Philippines' DPA could face penalties, even if the data processing occurs outside the Philippines.