New privacy laws sought

The development of the law on privacy in the Cayman Islands will lag behind other countries unless privacy protection measures are developed more rapidly in response to technological advancement, according to former trust lawyer Sara Collins.

The Cayman Islands Bill of Rights only protects the privacy rights of private parties against the government but not against other private parties, she explained in a keynote speech Oct. 4 at the Mourant Ozannes International Trusts and Private Client conference.

“This leaves us with a critical need to rethink our own privacy legislation, scrap the Confidential Relationships Preservation Law and come up with something that adequately addresses our clients’ privacy needs in the modern era, where the law can hardly keep pace with the rapid pace of development of technological and cultural attitudes towards privacy,” Ms Collins said.

In the joint presentation on privacy and the private client, together with Morven McMillan, head of International Trusts and Private Client in the Cayman office of Mourant Ozannes, the speakers outlined the gradual breakdown of privacy as a result of technological progress, as well as measures to fight financial crime.

The pair described English privacy law, where “courts are tiptoeing towards a freestanding right of privacy” that has to be balanced with the notion of public justice, press freedom, freedom of information and the developing idea that there is a right to access of information.

However, the speakers acknowledged that a different approach is likely in Cayman, where the Constitution could serve as the impetus for a legislative response to address these issues.

Ms Collins said it would be difficult to legislate adequate privacy protection without paying heed to what Lord Hoffman, in a speech in 2009, described as the “essentially national character of human rights.” Any new approach would have to fit Cayman’s particular circumstances, she said, rather than simply copying and pasting Euro-centric legislation such as the European Convention of Human Rights or data protection legislation.

“Privacy is to a large degree an abstract notion which means different things to different people,” she said.

“Our courts might have different views for example about questions of public interest, such as where the balance should lie between press freedoms and privacy protection in a small jurisdiction such as ours where, with the exception of politicians, no one really signs up for life in the public eye.”

She conceded that it will not be possible to legislate entirely away from the subjective element of this process. It will also be difficult to define what is worthy of protection, because privacy is such an abstract concept.

“Any attempt to protect privacy in the modern age should move away from looking at the nature of the relationship between the individuals concerned and focus rather on the nature of the information which is to be protected or not,” she argued.

Ms Collins noted there has long been a drive toward imposing universal standards in areas of human rights, tax information exchange, mutual legal assistance and financial services regulation. However, conflicting imperatives often emerge between these standards and it is up to Cayman’s judges in the cases that arise to weigh competing objectives in the balance, she said.

“It is by this process that the abstract universal standards become infused with a uniquely national flavor.”