OPINION

Privacy law in Bermuda

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In recent weeks there has been a fair amount of discussion in the global media concerning “phone hacking”, “superinjunctions” and “gag orders” involving celebrities, athletes, politicians, media barons and even ordinary people. To the average person, this may appear to hold little relevance. All of the above terms, however, find their origin in a broader concept which does apply to everyone which is a person’s “right to privacy”. In this article we shall review what the “right to privacy” entails and what practical legal protections are afforded by the courts in Bermuda.

In the United Kingdom the idea that a person is owed a “duty of confidence” has been recognised for many years. This concept originally took the form of being a common law duty whereby the courts would issue injunctions, or orders that would stop the publication of details of a person’s private lives in the newspapers.

Since that time, the concept of “privacy rights” has grown in the UK, and has included the passage of legislation arising from treaty obligations which affords greater protection to an individual’s private life. It is partly on the basis of those treaty rights that we now see in Britain the issuance of “super injunctions” which are used to prohibit anyone from relaying embarrassing details about another person and the passage of the “Data Protection Act” which, among other things, makes it a crime to “hack” or obtain unauthorised access to someone’s voice mail. The idea of protecting a person’s privacy is not absolute and the British courts have also recognised that such details may be published if it is in the public interest to do so. British law recognises that where a public figure has been accused of wrong doing, such publication may be justified even if it goes so far as to embarrass a sitting government. Whether such disclosure is justified will, however, depend entirely on the facts of the case.

So what does this mean for Bermuda? Although Bermuda does not yet afford the same privacy protections that are available in the UK, Bermuda’s Telecommunications Act is broad enough to safeguard certain aspects of a person’s privacy, particularly with regards to “hacking” into computer systems and voice mail. There are also Common Law protections in place which recognise that Bermudians have a right to privacy which will be enforced by the Supreme Court of Bermuda. This Common Law right is based on the British Common Law which is generally followed by the Bermudian Courts. It is on that basis that a Bermudian Court seeking to enforce a right to privacy will ask if the information should be viewed as confidential, whether the circumstances show that the information should have been held in confidence, and if the person who gave the information will or has been harmed by its release. The Privy Council has also ruled that even where a breach of confidence has occurred, that breach may still be excused if it is in the public interest that the information be published.

For these reasons, if you feel that any information that you have relayed in confidence to another party has been released without your consent, and you have suffered some kind of harm as a result of that disclosure, you should seek legal advice.

Bermuda is also moving forward in the passage of privacy legislation. In 2010, the Public Access to Information Act (“PATI”) was passed though it has yet to be brought into force. That legislation will allow members of the public to seek access to information that is held by the Bermuda Government and its agencies. PATI also provides safeguards to ensure that personal information, concerning individuals will not be released and that if there is any dispute as to whether that information can be accessed the matter will be decided by a Commissioner or ultimately the Courts. The Bermuda Government is also planning to pass a Personal Information Protection Act at some point in the future which will regulate how private organisations can use personal information they have acquired concerning individuals.

Privacy is a concept which is now recognised as being a legal right in Bermuda. This affords individuals with certain protections but also with responsibilities. Privacy is, however, a complicated area of the law and if you have any questions concerning this, you should consult with legal counsel.

Allan Doughty is a lawyer who practises with Trott & Duncan Ltd

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