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Privacy in the Facebook age

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

There are times when Bermuda's premier, or finance minister, needs to politely disagree with our British counterparts — to ensure that Bermuda's interests are protected.

One recent example is Britain's approach to Bermuda's Register of Beneficial Ownership of Companies.

This register relates to Bermudian companies, not British 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 Bermudian-made laws since July 11, 1612; our own parliament since August 1, 1620 — almost 400 years.

In 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 Britain for four centuries — with few exceptions.

Our Register of Beneficial Ownership dates back to the 1940s. Britain only recently implemented its own.

So why is Britain telling Bermuda what to do on beneficial ownership?

Why is the British Parliament now threatening to legislate directly for Bermuda on beneficial ownership — after 400 years?

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.

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, amid allegations that Facebook misused people's private data, Mark Zuckerberg, the founder, came before the United States Congress to be questioned.

He was asked about the importance of privacy — a “right” often trampled on by social media's “hang it all out there” approach.

Dick Durbin, the Democratic senator of Illinois, asked Mr Zuckerberg a poignant question.

Mr 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.

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 Justice 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 and 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 would 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 the Governor last month, when welcoming international legal experts to our island 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 own Constitution does so.

Because the populist “many” can trample on the “few”: sometimes with catastrophic effect.

Because 400 years of convention dictates that Bermuda, and not Britain, has the right to decide whether our Register of Beneficial Ownership should remain private.

David 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, Mr 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 affairs. Bermuda is entitled to protect this right.

The Parliament of Britain, a country steeped in history, should respect historical convention and let Bermuda's Parliament decide.

• Scott Pearman is the One Bermuda Alliance Shadow Minister for Legal Affairs and the MP for Paget East (Constituency 22)

Learned voice: Ian Kawaley, the former Chief Justice (Photograph by Akil Simmons)
Scott Pearman is the One Bermuda Alliance Shadow Minister for Legal Affairs and the MP for Paget East (Constituency 22)

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Published December 05, 2018 at 8:00 am (Updated December 05, 2018 at 8:00 am)

Privacy in the Facebook age

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