Issue of Right to Confidentiality vs Public Interest

Public interest is like a double-edged knife. On one side, there is a public interest in keeping the confidentiality of the banking information of the customers and, on the other side, on the grounds of public interest some of this information must be released. This essay will discuss in which kind of scenarios the right to confidentiality is defeated by means of public interest.

So, once the scope of this essay is set, the next step is to explain some concepts like the right to confidentiality and public interest. In the Irish Constitution there is not any provision in which the right of confidentiality or privacy is recognized, however throw the Article 40.3.2º could be inferred a “latent” right to secrecy but with undefined boundaries[1]. Because of this, when a plaintiff wants to ensure his privacy, he must claim on the basis of the Art. 8 of the ECHR[2]. The issue lies on the fact that there is no direct horizontal effect of the European Convention because it is binding for the signatory states. Notwithstanding the foregoing, there is an indirect horizontal effect due to the fact the courts “will be required to decide certain matters in a manner compatible with the provision of the ECHR”[3]. Also, it is important to highlight that these certain matters related to confidentiality usually appear in a situation in which there are two individuals: a banking institution and a customer, who could be a natural person or a company. Because all of this, “commercial privacy does not appear to feature very high up the league of competing public interests and is easily capable of being trumped by the public interest”[4].

However, there is an outstanding question regarding the confidentiality, and this has to do with the object of this duty / right, in other words: to which information is it applicable. Lord Donaldson MR once said that “the banker - customer relationship imposes upon the bank a duty of confidentiality in relation to information concerning its customer and his affairs which it acquires in the character of banker”[5]. But the main question it is not solved yet, because “in the character of banker” is a undefined concept. However, Court of Appeals of Oklahoma held that it means the information obtained by the bank in the course of its business or status as such[6]. In conclusion, according to Atkin LJ the right / duty covers the information about the account balance, the securities if there are and the information obtained from other sources and “it extends beyond the period when the account is closed or ceases to be an active account”[7].

In Tournier v National Provincial and Union Bank of England[8]there was set the exceptions to the duty of confidentiality. The two main ones are disclosure by compulsion of law and duty to public to disclose. Even though in both of them there is a feature of public interest, in the first exception the public interest has crystallized into law because indeed there is a public interest to do so.

The reason behind the disclosure by means of Money Laundering and Terrorist financing Act (for instance) is that there is an interest on the society that this kind of activities will not be carried out. So, in this scenario when the confidentiality is weighed and balanced against countervailing entitlements[9], it is defeated by the public interest. The same happens with the Criminal Justice Act, with the Central Bank regulatory powers, Bankers’ Book Evidence Acts and with Discovery Orders; behind all of them there is public interest.

In the second exception of Tournier (duty to public to disclose), the public interest acts in another way, it has not become law. Its main characteristic is that its “parameters are impossible to accurately to define and this reflects the true essence of the duty of confidentiality as itself an element of public interest”[10]. Because of this, this duty to disclose sensitive information could adopt different forms: the disclosure of information to its own central bank, national security issues, media willing to release confidential information in order to prove the existence of a tax evasion scheme[11]…

There is considerable case law regarding the conflict between the right to confidentiality and the public interest to disclose sensitive information by media. In these scenarios, the public interest behind this disclosure must meet some requirements in order to not to harm the confidentiality of the banking information. However, before assessing these conditions it is important to highlight and remember that the public interest in any publication “may outweigh the public interest in the maintenance of confidentiality”[12].

One of the requirements that must be fulfilled when disclosing information takes into account the contribution to the society of the sensitive information. The rationale of this condition lies on the fact that “the public has an extraordinary interest in there being a free and untrammelled press entitled to comment on all matters that are genuinely of public interest as opposed to matters of mere public prurience or curiosity”[13]. So according to this statement of Mac Eochaidh J, the disclosed information must cause a debate in the society because from this kind of debate appears the social benefit since it is not about trivial matters but huge issues as “knowing that it (a bank) is properly governed and operated, and where there are any significant shortcomings in this regard, and in particular where such shortcomings may lead to significant losses, which have to be borne at the expense of the public purse, in my (Binchy J) view the public is entitled to be informed of such matters”[14], for instance.

Also, it is important to highlight that the public interest, as defined above, it is not a synonym of media’s own interest[15]. Only the information with public interest would be fair enough to be disclosed. For example, to publish the account balance of a famous football player would be in accordance with the media own interest. However, this kind of information is mere “public prurience or curiosity” and it has not any public interest in order to shift the right to confidentiality.  So “no one would like to see their banking details on the front page of any newspaper and therefore there is a public interest in protecting and upholding those confidences”[16].

Once it is set that curiosity has not any public interest in order to be released, it is mandatory to assess what kind of matters could be released on the grounds of public interest. Shanley J held that "it seems to me that disclosure of confidential information will almost always be justified in the public interest where it is a disclosure of information as to the commission or intended commission of serious crime because the commission of such crime is an attack upon the State and the citizens of the State and such disclosure will always be in the public interest. While the disclosure of serious crime will always be in the public interest there is also a range of other activities (which are not necessarily criminal) the disclosure of which may also justify a breach of confidence on the grounds that its disclosure is in the public interest”[17]. So, what the learned judge is saying is that if the information hides a criminal offences there will not be any doubt that there is public interest enough for being released, however the sensitive data could be related to other not criminal purposes and yet relevant enough for the society in terms of public interest.

At that exact point Shanley J refrained of setting the boundaries and the parameters of the public interest and he preferred to refer to what Ungoed Thomas J said. This Judge held that "... misdeeds of a serious nature and importance to the country will justify disclosure on the grounds that such disclosure is invariably in the public interest"[18]. However, the term “misdeeds of a serious nature and importance” it is not still a clear concept in order to define exactly when disclosing confidential banking information may be in the public interest.

There are some cases like in Lion Laboratories in which “although there has been no wrongdoing on the part of the plaintiff, it may be vital in the public interest to publish a part of his confidential information”[19]. The rationale on this particular case was that there was a public interest to disclose sensitive information regarding a device which potentially could convict someone of a serious felony. So, the important fact of this case is that there is not any criminal offence neither any wrongdoing, there was only the chance that an inequity could be given in a hypothetical situation.

At this point it is clear that the public interest could appear in a wide range of scenarios which could mean the disclosure of sensitive information protected prima facie with the duty of confidentiality. Even though the huge differences between them, taking into account that it is not the same an scheme of tax evasion and a case in which it could be proven a particular treatment of a wealthy client, it is needed to give a more accurate and definitive answer to the topic of this essay. Because of this, it would be wise to refer to what Binchy J “it is submitted on behalf of each the plaintiffs that the circumstances in which the public interest will justify disclosure of what is otherwise confidential information are; where the information reveals a matter which is of pressing public concern, serious misconduct (actual or contemplated), or must otherwise be important for safeguarding the public welfare in matters of health and safety”[20].

In conclusion, there is a public interest in both extremes: in keeping the confidence and in releasing sensitive information regarding the banking account data, also when this account it is not still active. However, in any given situation we must remember that the commercial privacy is not an absolute right or duty, indeed, as we have already checked, it is a week one; and if there a level of public interest and that means a social revenue for its disclosure, information must be released.

Bibliography

• Breslin, Banking Law (3rd edn, Thomson Round Hall 2012)
• Collins and O’Reilly, Civil Proceedings and the State (2nd edn, Thomson Round Hall 2004)
• McMahon and Binchy, Law of Torts (3rd edn, Butterworths 2000)
• European Convention of Human Rights 1950
• Money Laundering and Terrorist financing Act 2010
• Barclays Bank v Taylor [1989] 1 W.L.R 1066 at 1070.
• Beloff v. Pressdram Ltd. [1973] 1 All E.R. 241 at
• Cooper Flynn v Radió Teilifís Éireannn [2000] 3 I.R. 344 at 351.
• Djowharzadeh v City National Bank and Trust Co. (1982) 646 P. 2d 616 (Oklahoma Ct. App., 1982)
• Francome v. Mirror Group Newspapers [1984] 2 All ER 408
• Lion Laboratories Ltd. v. Evans [1985] Q.B. 526
• McKillen v. Times Newspapers Ltd. [2013] IEHC 150
• National Irish Bank v RTE [1998] 2 IR 465
• O' Brien v RTE [2015] IEHC 397
• Tournier v National Provincial and Union Bank of England [1924] 1 KB 461

[1] McMahon and Binchy, Law of Torts (3rd edn, Butterworths 2000), Ch. 37.

[2] Collins and O’Reilly, Civil Proceedings and the State (2nd edn Thomson Round Hall 2004) Ch. 11

[3] Breslin, Banking Law (3rd edn, Thomson Round Hall 2012) pg. 235

[4] Ibid.

[5] Barclays Bank v Taylor [1989] 1 W.L.R 1066 at 1070.

[6] Djowharzadeh v City National Bank and Trust Co. (1982) 646 P. 2d 616 (Oklahoma Ct. App., 1982)

[7] Tournier v National Provincial and Union Bank of England [1924] 1 KB 461

[8] Ibid.

[9] Cooper Flynn v Radió Teilifís Éireannn [2000] 3 I.R. 344 at 351.

[10] Breslin, Banking Law (3rd edn, Thomson Round Hall 2012) pg. 249

[11] National Irish Bank v RTE [1998] 2 IR 465

[12] Ibid

[13] McKillen v. Times Newspapers Ltd. [2013] IEHC 150

[14] O' Brien v RTE [2015] IEHC 397

[15] Francome v. Mirror Group Newspapers [1984] 2 All ER 408

[16] McKillen v. Times Newspapers Ltd. [2013] IEHC 150 Unreported

[17] Ibid.

[18] Beloff v. Pressdram Ltd. [1973] 1 All E.R. 241 at p. 260

[19] Lion Laboratories Ltd. v. Evans [1985] Q.B. 526

[20] O' Brien v RTE [2015] IEHC 397