The Data Protection (Bailiwick of Guernsey) Law, 2017, as amended ('the Data Protection Law') establishes a comprehensive framework for data protection in Guernsey. This analysis will explore the law's applicability based on material and territorial factors.

Material Applicability Factors

The Data Protection Law's material scope is primarily determined by the Automated Means Criterion.

Automated Means Criterion

Data Protection Law Art.2(2)(a):

*"(2) Condition A is that – * (a) the processing is wholly or partly by automated means, or "

This provision extends the law's applicability to data processing that is carried out wholly or partially by automated means. This criterion encompasses a wide range of digital and electronic data processing methods, reflecting the law's intention to cover modern data handling practices.

The phrase "wholly or partly by automated means" is significant as it captures not only fully automated systems but also processes that involve a combination of automated and manual elements. This broad approach ensures that the law remains relevant in the face of evolving technologies and data processing techniques.

Territorial Applicability Factors

The Data Protection Law's territorial scope is determined by three main factors: Processing in Context of Local Establishment, Offering Goods and Services to Data Subjects in Jurisdiction, and Monitoring Data Subjects Within Jurisdiction.

Processing in Context of Local Establishment

Data Protection Law Art.2(3)(a):

*"(3) Condition B is that – * (a) the processing is in the context of a controller or processor established in the Bailiwick, or "

This provision applies the law to data processing activities related to establishments in Guernsey. The phrase "in the context of" suggests a broad interpretation, covering not only processing directly carried out within Guernsey but also activities connected to a Guernsey-based establishment.

This factor has significant implications for both local and foreign entities:

1. Local businesses must comply with the law for all their data processing activities.
2. Foreign organizations with any form of establishment in Guernsey may fall under the law's scope for related processing activities.
3. The broad interpretation of "in the context of" may capture various business activities and data flows.

Offering Goods and Services to Data Subjects in Jurisdiction

Data Protection Law Art.2(3)(b)(i):

*"(3) Condition B is that – * *(b) the personal data is that of a Bailiwick resident, and it is processed in the context of – * (i) the offering of goods or services (whether or not for payment) to the resident, or "

This provision extends the law's applicability to entities processing personal data of Bailiwick residents in the context of offering goods or services, regardless of whether payment is involved. Key elements include:

1. The data subject must be a Bailiwick resident.
2. The processing must be related to offering goods or services.
3. The offering must be directed at Bailiwick residents.

This factor has extraterritorial implications, capturing businesses that target Guernsey residents, even without a physical presence in the Bailiwick.

Monitoring Data Subjects Within Jurisdiction

Data Protection Law Art.2(3)(b)(ii):

*"(3) Condition B is that – * *(b) the personal data is that of a Bailiwick resident, and it is processed in the context of – * (ii) the monitoring of the resident's behaviour in the Bailiwick. "

This provision applies the law to the processing of Bailiwick residents' personal data when their behavior is monitored within the Bailiwick, even if the controller or processor is not established in Guernsey. Key elements include:

1. The data subject must be a Bailiwick resident.
2. The processing must involve monitoring of the resident's behavior.
3. The monitored behavior must occur within the Bailiwick.

This factor has significant implications for various activities, including online tracking, IoT devices, location-based services, and customer profiling.

Conclusion

The Data Protection (Bailiwick of Guernsey) Law’s scope of application includes both material and territorial factors. Its material scope covers automated data processing, while its territorial reach extends to local establishments, entities offering goods or services to Bailiwick residents, and those monitoring residents' behavior within the Bailiwick.