The British Virgin Islands Data Protection Act (BVI DPA) uses an entity's link or presence in the jurisdiction as a key factor in determining the law's applicability, extending its scope to both entities established in the BVI and those maintaining certain types of presence in the territory.

Text of Relevant Provisions

BVI DPA Art. 4(4)(d):

"(4) For the purposes of subsections (2) and (3), each of the following shall be treated as established in the Virgin Islands:

(d) a person who does not fall within paragraph (a), (b) or (c) but maintains in Virgin Islands

(i) an office, branch or agency through which he or she carries on any activity; or

(ii) a regular professional practice."

Analysis of Provisions

The BVI DPA extends its applicability to entities based on their link or presence in the British Virgin Islands. Article 4(4)(d) specifically addresses entities that are not physically present in the BVI for an extended period, not incorporated under BVI laws, and not formed as partnerships or unincorporated associations under BVI laws (which are covered in paragraphs (a), (b), and (c) of the same article).

The provision expands the definition of "established in the Virgin Islands" to include entities that maintain:

1. "an office, branch or agency through which he or she carries on any activity" in the BVI
2. "a regular professional practice" in the BVI

This approach ensures that the DPA covers a wide range of entities that have a significant connection to the BVI, even if they are not traditionally considered as "established" in the territory.

The rationale behind this provision is to capture entities that have a meaningful presence in the BVI and are likely to process personal data of BVI residents or in connection with BVI-related activities. By including these entities within the scope of the law, the BVI legislature aims to protect the personal data of individuals in the territory, regardless of the formal establishment status of the data controller or processor.

Implications

The broad definition of establishment in the BVI DPA has several implications for businesses:

1. Foreign companies with offices or branches in the BVI: Even if a company is not incorporated in the BVI, maintaining an office or branch in the territory will subject it to the DPA's requirements.
2. Professional service providers: Lawyers, accountants, consultants, or other professionals who regularly practice in the BVI, even if not permanently based there, may fall under the DPA's scope.
3. Remote workers and digital nomads: Companies employing remote workers or digital nomads who regularly work from the BVI might be considered as maintaining a "regular professional practice" in the territory.
4. Temporary projects or assignments: Organizations carrying out temporary projects or assignments in the BVI through an office or agency might be subject to the DPA for the duration of their activities.
5. Online businesses: E-commerce platforms or online service providers that have a significant user base in the BVI and maintain some form of local presence (e.g., a local representative or support office) could be considered established in the territory.

Businesses operating in or with connections to the BVI should carefully assess their presence and activities in the territory to determine whether they fall under the DPA's scope. Those found to be "established" in the BVI according to these provisions will need to comply with the Act's requirements, including data protection principles, data subject rights, and potentially appointing a local representative if they are not physically present in the territory.