Privacy in the Facebook Age by OBM Scott Pearman, Shadow Minister For Legal Affairs

With our Premier in London meeting with the UK Overseas Territories Association, this may be an appropriate moment to reflect on Bermuda’s current relationship with the UK.

There are times when Bermuda’s Premier (or Finance Minister) needs to politely disagree with our UK counterparts – to ensure that Bermuda’s interest is protected.One recent example is the UK’s approach to Bermuda’s Register ofBeneficial Ownership of Companies.

This Register relates to Bermudian companies, not UK ones. However, London is saying it will force Bermuda to make our Register public by December 31, 2020, If our Parliament does not do so.Yet Bermuda is a self-governing overseas territory. We’ve had Bermuda-made laws since 11 July 1612. Our own Parliament since 1 August 1620, almost 400 years.Constitutional ConventionIn schooldays, when ‘knee-high to a grasshopper’,

Bermudians learn we are self-governing: that London does not legislate for the Mid-Atlantic. We Bermudians make our laws. This understanding has been called a‘constitutional convention’, respected by the UK for four centuries – with few exceptions.

Our Register of Benficial Ownership dates back to the 1940s. The UK only recently implemented theirs. So why is Britain telling Bermuda what to do on beneficial ownership? Why is the British Parliament now threatening to legislate directly forBermuda on benficial ownership – after 400 years?Bermuda’s Register of Beneficial Ownership When Bermuda Inc. first spread its wings, our Island made sure we knew who was doing business here. A Register was created to record ownership of companies.

Yet Bermuda’s Register was private, not public. Individuals were not publicised for all to see. If information was needed about any company ,then the Register could be accessed through due process. There was a respect for privacy and ownership rights – foreshadowing the right to privacy enshrined in Bermuda’s Constitution in 1968.The Right to Privacy. And privacy should be protected. Right? Sure, we publish MP salaries, because we are paid by the People. But what about your salary? Should your co-workers know what you are paid? Should your worldly possessions (or debts) be published for everyone to see?

In today’s digital world, once personal details escape online, they acquire a life of their own.In April, amidst allegations that Facebook misused people’s private data,Mark Zuckerberg, the founder, came before the US Congress to be questioned. He was asked about the importance of privacy – a ‘right’ often trampled upon by social media’s hang-it-all-out-there approach.Senator Dick Durbin, Democrat of Illinois, asked Mr Zuckerberg a poignant question: Sen. Durbin – Would you be comfortable sharing with us the name of the hotel that you stayed in last night? Mr  Zuckerberg: Um…uh…no.

This response was more revealing than most Facebook posts. His reluctance confirmed that privacy matters. Zuckerberg declined to answer. But he had the right to decline; the right to keep his personal information private from the World.The Former Chief Justice. Back to Bermuda: Before Ian Kawaley retired from our Supreme Court Bench, the Chief Justice gave a judgment that captured rather less media attention than others. This judgment, about privacy and trusts, was nonetheless important.

The Chief was contemplating criticisms levelled at Bermuda (and other financial centres) where privacy is protected in financial matters. His Lordship said this:

“Bermuda’s offshore sector began in the mid-1930s and the concept of offshore companies and offshore trusts were commercially driven, at least in part, by anxieties on the part of far-sighted members of the European moneyed classes about a looming war and the risk of confiscation of their assets (or worse) by populist governments envious of their wealth in recessionary times.

The confiscation of assets or worse did in fact occur, and Bermuda fought on the victorious side which introduced the notion of fundamental human rights designed to ensure that untrammelled  democracy will not trample on personal and property rights again.”

European history demonstrated, at great cost, what happens when fundamental rights fall victim to extreme populism.The observations by the former Chief Justice were cited by Bermuda’sGovernor last month, when welcoming international legal experts to ourIsland for a trust conference – welcoming those whose clients still consider Bermuda a safe haven in an increasingly turbulent world.Why does all this matter?

Because history has shown why ‘rights’ – such as the right to privacy –must have the utmost protection in law; and why our very ownConstitution does so.

Because the populist ‘many’ can trample upon the ‘few’: sometimes with catastrophic effect. Because 400 years of convention dictates that Bermuda – and not the UK– has the right to decide whether our Register of Beneficial Ownership should remain private.In our HousePremier Burt, to his credit, has taken a clear stance on this issue. He told the House of Assembly: “There will be no public Register of Beneficial Ownership in Bermuda until this Honourable House, elected by the people of Bermuda, votes to implement one.”

Like other Premiers before him, from all parties, Premier Burt rightly asserts that the choice is one for our House of Assembly.Law abiding private citizens have the right to privacy, including privacy in their financial aFairs. Bermuda is entitled to protect this right. TheParliament of Britain, a country steeped in history, should respect historical convention and let Bermuda’s Parliament decide.

Scott Pearman MP, OBA Shadow Minister for Legal Affairs