The BVI DPA extends its applicability to entities not established in the British Virgin Islands through the use of equipment factor. Specifically, Article 4(2)(b) stipulates that the Act applies to a person who "is not established in the Virgin Islands, but uses equipment in the Virgin Islands for processing personal data". This provision captures data processing activities conducted by foreign entities using physical infrastructure within the BVI territory.

It's important to note that the law explicitly excludes the mere transit of data through the Virgin Islands from its scope. The phrase "otherwise than for the purposes of transit through Virgin Islands" indicates that if the equipment is used solely for transmitting data through the territory without any processing, the Act does not apply.

Furthermore, Article 4(3) imposes an additional obligation on entities falling under this provision:

"A person referred to in subsection (2)(b) shall nominate for the purposes of this Act a representative established in the Virgin Islands."

This requirement ensures that non-established entities using equipment in the BVI have a local point of contact for regulatory purposes.

Implications

The "Use of Equipment" factor significantly expands the territorial reach of the BVI DPA. It has several implications for businesses:

1. Foreign companies using servers, data centers, or other processing equipment in the BVI must comply with the Act, even if they have no formal establishment in the territory.
2. Cloud service providers or data processors with infrastructure in the BVI may be subject to the Act when processing data on behalf of their clients.
3. Companies must carefully assess whether their data processing activities in the BVI go beyond mere transit, as this distinction determines the Act's applicability.
4. Non-established entities falling under this provision must appoint a local representative, adding an administrative burden and potentially increasing compliance costs.
5. The broad interpretation of "equipment" could potentially include mobile devices, IoT devices, or any technology capable of processing personal data within the BVI territory.