JAMAICA Law and Practice Contributed by: Samantha Moore, Marc Ramsay and Chantelle Biersay, Ramsay & Partners
• the period for which the contravention continued; • the number and severity of any other offences under the DPA committed by the body corporate; and • any other factors which the court considers rel - evant. An individual who suffers damage by reason of any contravention by a data controller of any of the requirements under the DPA is entitled to compensa - tion from the data controller for that damage. Addi - tionally, an individual who suffers distress by reason of any contravention by a data controller of any of the requirements under the DPA is entitled to compensa - tion, from the data controller, for that distress if: • the individual also suffers damage by reason of the contravention; or • the contravention relates to the processing of per - sonal data for the special purposes. Appeal Process Any person aggrieved by a decision of the Information Commissioner, other than a decision in respect of an enforcement notice, assessment notice or information notice, may appeal to the Appeal Tribunal in accord - ance with such procedure as may be prescribed under the DPA. The appeal process has not yet been pre - scribed by the relevant Minister. 1.9 Enforcement Trends The most significant privacy trend in the last 24 months was the public campaign which was launched by the Information Commissioner requiring the regis - tration of data controllers with the Information Com - missioner. The Information Commissioner embarked on a major campaign over the past two years encour - aging data controllers to register and advising of the potential risks for failure to do so. Note, however, that to date, the Information Commissioner has not taken any enforcement action against a data controller for failure to register. The practical takeaway for organisations is that failure to register with the Information Commissioner would constitute an offence under the DPA which could result in severe fines and penalties. Consequently, organisations must cease any further processing of
personal data unless and until they have registered with the Information Commissioner.
2. Privacy Litigation 2.1 Privacy Litigation Overview In Jamaica, as the DPA was only recently enacted, privacy litigation is in its infancy. As mentioned in 1.8 Enforcement Proceedings and Fines , a claimant can bring a claim before the courts if he/she can prove that he/she has suffered some sort of damage due to any contravention by a data controller of any of the requirements under the DPA. The remedies available would be: • compensation (damages); • injunctions (including interim injunctions restraining further processing); and • declaratory relief. Additionally, an individual who suffers distress (ie, non-material damages) by reason of any contraven - tion by a data controller of any of the requirements under the DPA can bring a claim before the courts for that distress if: • the individual also suffers damage by reason of the contravention; or • the contravention relates to the processing of per - sonal data for so-called “special purposes” (such as journalism, art or literature). Distress alone is not generally compensable and is recoverable only if: • the claimant also suffered material “damage”; or • the contravention relates to the “special purposes” (such as journalism, art or literature). 2.2 Recent Case Law Morrison v Elephant Group Ltd (t/a Centerfield Jamai - ca) & others is one of the first reported Supreme Court decisions on the DPA regarding injunctive reliefand the lawful bases for processing in an employment context.
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