Tim Clipstone
Partner | Legal
British Virgin Islands, Guernsey
Partner
British Virgin Islands, Guernsey
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Our sector approach relies on smart collaboration between teams who have a deep understanding of related businesses and industry dynamics. The specific combination of our highly informed experts helps our clients to see around corners.
Ogier provides practical advice on BVI, Cayman Islands, Guernsey, Irish, Jersey and Luxembourg law through our global network of offices across the Asian, Caribbean and European timezones. Ogier is the only firm to advise on this unique combination of laws.
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Insight
16 July 2018
Guernsey
Data protection and privacy laws have been reformed across Europe by Regulation (EU) 2016/679, commonly known as the General Data Protection Regulation (GDPR) which came into force on 25 May 2018. The GDPR builds on existing legislation and seeks to harmonise and enhance data protection and privacy laws across the EU. It also introduces significant fines in respect of breaches.
Guernsey’s Data Protection (Bailiwick of Guernsey) Law 2017, which mostly mirrors the requirements of the GDPR, came into force on the same day. The DP Laws apply the requirements of the GDPR on a global basis (that is, not only in respect of data relating to EU-resident individuals).
Importantly, this means that Guernsey is likely to continue to be classed by the European Commission as an adequate third country to which data can be transferred, which can only be good news for Guernsey service providers.
The GDPR has immediate effect in EU Member States and, therefore, automatically applies to organisations which are established in the EU. However, it also has extraterritorial scope, and applies to third country organisations which have an establishment in the EU or where the processing of personal data relates to: a) the offering of goods or services to EU residents; or b) the monitoring of the behaviour of EU residents where the behaviour takes place in the EU.
In the context of investment funds, the offering of interests in a fund is generally considered to be an “offer of goods or services”, thereby bringing funds within the scope of the GDPR.
Personal data is any information in respect of which a natural person can be identified, such as their name, address, identification number, as well as online identifiers (including cookies). This type of data is typically collected from investors during the subscription process.
However, the GDPR imposes a higher compliance burden in respect of “special category data” which includes data revealing racial origin, political opinions or religious beliefs. The latter category is unlikely to be relevant for most funds, though sharia funds, socially responsible or ethical investing funds could find that they hold special category data. In addition, political affiliations of PEPs result in such data being held.
The following action points should assist funds and service providers set their priorities:
The expectation is that reliance will be placed on fund administrators to provide the resources and infrastructure required for these activities, though it is important to note that data controllers retain responsibility for damage caused by processing data in contravention of the GDPR. Fund and management boards should also, therefore, be trained in the requirements of the GDPR.
First published in Global Fund Media special report on Guernsey fund services, July 2018.
Tim Clipstone
Partner | Legal
British Virgin Islands, Guernsey
Partner
British Virgin Islands, Guernsey
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Bryon Rees
Partner | Legal
Guernsey
Partner
Guernsey
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Ogier is a professional services firm with the knowledge and expertise to handle the most demanding and complex transactions and provide expert, efficient and cost-effective services to all our clients. We regularly win awards for the quality of our client service, our work and our people.
This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.
Regulatory information can be found under Legal Notice
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