The British Virgin Islands Data Protection Act (BVI DPA) utilizes the "Processing by Local Establishment" factor to determine the applicability of its data protection law. This factor ensures that entities established within the British Virgin Islands are subject to local data protection regulations.

Text of Relevant Provisions

BVI DPA Art. 4(2)(a):

"Subject to subsection (1), this Act applies to a person in respect of personal data of the person is established in the Virgin Islands and processes personal data, or employs or engages any other person to process personal data on his or her behalf, whether or not in the context of that establishment; or"

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

"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 a regular professional practice."

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

"For the purposes of subsections (2) and (3), each of the following shall be treated as established in the Virgin Islands: (c) a partnership or other unincorporated association formed under any written laws in the Virgin Islands; and"

Analysis of Provisions

The BVI DPA applies the "Processing by Local Establishment" factor through a combination of provisions that define the scope of its applicability. Article 4(2)(a) establishes the primary criterion, stating that the Act applies to persons "established in the Virgin Islands" who process personal data or engage others to process data on their behalf.

The concept of "establishment" is further elaborated in Article 4(4), which provides specific criteria for determining when an entity is considered established in the British Virgin Islands. This includes:

1. Physical presence: Article 4(4)(a) considers a person established if they are "physically in the Virgin Islands for a period of not less than one hundred and eighty days in one calendar year".
2. Legal incorporation: Article 4(4)(b) includes "a body incorporated under any written laws in the Virgin Islands".
3. Partnerships and associations: Article 4(4)(c) extends to "a partnership or other unincorporated association formed under any written laws in the Virgin Islands".
4. Professional practice: Article 4(4)(d)(ii) considers a person established if they maintain "a regular professional practice" in the Virgin Islands.

These provisions collectively ensure that the BVI DPA applies to a wide range of entities with a significant connection to the British Virgin Islands, regardless of their specific legal structure or the duration of their physical presence.

Implications

The "Processing by Local Establishment" factor has several implications for businesses operating in or connected to the British Virgin Islands:

1. Local entities: Companies incorporated in the BVI, partnerships, and associations formed under BVI laws are automatically subject to the DPA, regardless of where their data processing activities occur.
2. Foreign entities with local presence: International companies maintaining offices, branches, or regular professional practices in the BVI fall under the Act's jurisdiction, even if their primary operations are elsewhere.
3. Long-term residents: Individuals staying in the BVI for extended periods (180 days or more in a calendar year) are considered established and must comply with the DPA if they process personal data.
4. Data processors: The Act applies not only to entities processing their own data but also to those processing data on behalf of others, expanding the scope to include data processing service providers.
5. Context-independent application: The Act applies to established entities regardless of whether the data processing occurs in the context of their BVI establishment, potentially extending to their global operations.

This broad approach to establishment ensures comprehensive coverage of data protection regulations within the British Virgin Islands' jurisdiction, capturing both local and foreign entities with significant ties to the territory.