The Data Protection Act, 2020 of Jamaica extends its territorial scope to data controllers not established in Jamaica under specific circumstances. According to Article 3(1)(b)(ii)(A), the Act applies to data controllers who process personal data of data subjects in Jamaica if the processing activities are related to "the offering of products or services to data subjects in Jamaica".

This provision is designed to capture foreign entities that target the Jamaican market with their goods or services, even if they don't have a physical presence in the country. The law applies regardless of whether the data subject is required to make a payment, which means both free and paid offerings are covered.

The phrase "irrespective of whether a payment of the data subject is required" is particularly noteworthy as it broadens the scope to include various business models, including those that offer free services but monetize user data in other ways.

It's important to note that the provision specifies that the data subject must be "in Jamaica" and that the processing activities must be "related to" the offering of products or services. This suggests that merely having a website accessible from Jamaica may not be sufficient to trigger the application of the Act; there likely needs to be some level of targeting or intention to serve the Jamaican market.

Implications

This provision has significant implications for foreign businesses targeting the Jamaican market:

1. Extra-territorial application: Companies based outside Jamaica that offer goods or services to Jamaican residents may need to comply with the Jamaican Data Protection Act, even if they have no physical presence in the country.
2. Broad coverage of business models: Both traditional e-commerce businesses and companies offering free digital services (e.g., social media platforms, free apps) are potentially subject to the Act if they target Jamaican users.
3. Need for market analysis: Companies will need to assess whether their activities constitute "offering" products or services to data subjects in Jamaica. This may involve analyzing marketing strategies, language options, currency settings, and other factors that indicate targeting of the Jamaican market.
4. Compliance requirements: Foreign entities falling under this provision will need to appoint a representative in Jamaica (as per Article 3(2)) and ensure compliance with all aspects of the Jamaican Data Protection Act.
5. Potential for regulatory action: Non-compliant foreign entities could face enforcement actions from Jamaican authorities if they process personal data of Jamaican residents while offering goods or services to them.