Data Protection In Jersey And Other Offshore Jurisdictions

After a rigorous two year assessment programme, Jersey has

recently achieved a positive assessment for adequacy of its

data protection regime from the European Commission.

The Data Protection (Jersey) Law 2005

("DP Law") was adopted by the States of Jersey on 30

June 2004. The DP Law was modelled on the UK data protection

legislation and was aimed specifically to satisfy the

requirements of the EU Directive 94/46/EC on the protection of

individuals with regard to the processing of personal data and

the free movement of such data.

As a result most provisions of the DP Law would be very

familiar to UK and European practitioners. It basically

embodies the eight data protection principles, inter alia,

permitting only fair and lawful processing of personal data

which is adequate, relevant, not excessive and accurate,

up-to-date and timely, for specified lawful purposes only and

imposing upon data controllers security obligations and

restrictions on transferring personal data outside the European

Economic Area and countries assessed as adequate (the

"eight data protection principle").

Accordingly the DP law grants similar rights to data

subjects including access rights, rights to stop processing

which causes distress/damage or for direct marketing and

provides rights in relation to automated decision-making. It

also grants remedies to the data subject including

compensation. The DP Law imposes a similar structure of

notification requirements and other obligations on data

controllers. However, the DP Law and subordinate legislation

issued under it have been modified in Jersey to take into

account the special nature of the Island and its highly

successful finance industry.

Data Protection and the Disclosure of Trust Documents

For instance, trustees naturally often find themselves under

pressure from beneficiaries to account for their actions. One

aspect of this is the frequent call from beneficiaries for the

disclosure of trust documentation, including accounts and

letters of wishes. On a few occasions the Royal Court of Jersey

has provided useful clarification of trustees' obligations

(as set out in the Trusts (Jersey) Law 1984

and the customary law of Jersey generally) to disclose

documents, particularly in cases such as Re Rabaiotti's

Settlements ([2000] JLR 173) and In the Matter of the

M Trust ([2003] JRC 002A).

Generally, beneficiaries of trusts are entitled to inspect

trust documents (which would usually catch the trust

instrument, any subsidiary documents, and the accounts of the

trust) and to require disclosure of such documents by trustees.

However, this right does not extend to documents which would or

might disclose the reasons behind the exercise of a

trustee's discretion. Therefore, documents such as agendas

and minutes of trustees' meetings, correspondence between

trustees and individual beneficiaries and...