The Data Protection Act, 2020 of Jamaica uses the entity's link or presence in Jamaica as a factor for determining the law's applicability.

Text of Relevant Provisions

The Act Art.3(3)(d):

"(3) For the purposes of subsections (1) and (2), each of the following shall be treated as established in Jamaica—

(d) any person who does not fall within paragraph (a), (b) or (c) but who maintains in Jamaica—

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

(ii) a regular practice."

Analysis of Provisions

The Data Protection Act, 2020 of Jamaica extends its applicability to entities that have a significant connection to Jamaica, even if they are not formally incorporated or registered in the country. This is evident from Article 3(3)(d), which provides two specific criteria for considering an entity as "established in Jamaica":

1. Maintaining "an office, branch or agency through which the person carries on any activity" in Jamaica
2. Maintaining "a regular practice" in Jamaica

These provisions broaden the scope of the Act's applicability beyond entities that are formally incorporated or registered in Jamaica (covered by Art.3(3)(b)) or individuals who are ordinarily resident in Jamaica (covered by Art.3(3)(a)).

The inclusion of "office, branch or agency" suggests that even a limited physical presence in Jamaica could be sufficient to bring an entity within the Act's scope. The phrase "through which the person carries on any activity" implies that the presence must be functional and not merely nominal.

The concept of "regular practice" is broader and could potentially capture entities that do not have a physical office but conduct business in Jamaica on a regular basis. This could include, for example, companies that frequently send representatives to Jamaica for business purposes or those that have a significant customer base in the country.

Implications

This factor has several important implications for businesses:

1. Foreign companies with any form of physical presence in Jamaica (even a small office or a single representative) may be subject to the Act.
2. Companies without a physical presence but with regular business activities in Jamaica may also fall under the Act's jurisdiction.
3. The broad language of "regular practice" could potentially apply to digital businesses that target Jamaican customers, even without a physical presence in the country.
4. Companies should carefully assess their connections to Jamaica, as even seemingly minor links could potentially bring them within the scope of the Act.
5. Entities found to be "established in Jamaica" under these criteria would need to comply with all aspects of the Data Protection Act, including registration requirements and data protection standards.

This approach reflects a global trend in data protection legislation to extend jurisdiction based on business activities rather than solely on formal establishment, ensuring that entities significantly engaged with a jurisdiction's residents are subject to its data protection regime.