Leaks of offshore company records have gained enormous popularity and continue to grow in scope and scale. The Pandora Papers, Paradise Papers, Bahamas Leaks, and Panama Papers sparked investigations into kleptocrats, oligarchs, and government officials who failed to disclose their assets. But the vast majority of leaked documents relate to private citizens acting lawfully. Does this create a human rights issue?
Before considering private citizens, let’s look at civil servants. In most jurisdictions where they serve, they are now required to disclose their assets, regardless of where those assets are located. If officials do not disclose their assets, including their offshore holdings, they are likely violating disclosure laws.
What about kleptocrats and oligarchs – anyone who illegally plunders national wealth and hides it abroad? Yes, they should also be displayed in public view. Journalists who help to do so – sometimes at great personal risk – should be commended and encouraged.
While leaks about public officials and those who illegally acquire national assets must be publicly revealed, what about law-abiding private citizens? The documents relating to them represent more than 99% of the content of the leaks. Yet these private citizens are not charged with breaking the laws that apply to them. In these cases, do journalists have a legal or ethical duty or both to protect their personal and private data?
This is not a new question. For example, the International Consortium of Investigative Journalists (ICIJ), the DC-based nonprofit that maintains a database leaked documents, includes this disclaimer in the database:
There are legitimate uses for offshore companies and trusts. The inclusion of any person or entity in the ICIJ Offshore Leaks Database is not intended to suggest or imply that they have engaged in illegal or improper conduct.
It is therefore clear that there are legitimate private uses for offshore companies and accounts. And private citizens would also have a reasonable expectation of privacy in their lawful offshore activities. So what are the legal and ethical requirements to protect their privacy?
Here is a relevant excerpt from the United Nations report Declaration of Human Rights:
No one shall be subject to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honor and reputation. Everyone has the right to the protection of the law against such interference or attack.
Notwithstanding the ICIJ’s disclaimer, does maintaining a public database of leaked documents about a private citizen who is not accused of illegal activity constitute an “attack on his honor and to his reputation” within the meaning of Article 12 of the United Nations Declaration of Human Rights?
What about the headlines that often follow a leak and feature the names of celebrities such as professional athletes? Are their “honor and reputation” protected from attack?
In addition to the UN, the Council of Europe has spoken out on fundamental human rights. Here is the language of the Board European convention of human rights:
Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by any public authority with the exercise of this right except where it is lawful and necessary in a democratic society in the interest of national security, public safety or the economic well-being of the population. country, for the prevention of criminal order, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Are legal offshore transactions part of a person’s “private life”? And what about leaked documents that fall into the category of “correspondence” and are therefore protected by the European Convention? Should these items be included in a database of leaked documents or reproduced or mentioned in news reports?
The European Court of Human Rights considered a similar case in 2001. A A Lithuanian woman’s private health data — the fact that she was HIV-positive — was leak to journalists and the published. The court said: “The newspaper deliberately sought to humiliate him or intentionally allowed such negative consequences to occur. She received a small financial compensation because Lithuania did not “sufficiently prevent these outrageous abuses of press freedom”.
The Court added (with my emphasis): “The protection of personal datain particular medical data, are of fundamental importance for the exercise by a person of his right to respect for private and family life.
Offshore companies, trusts and accounts can be used for purposes that are not against the law. As the ICIJ says in its disclaimer, “there are legitimate uses for offshore companies and trusts.” While exposing how some public officials hide offshore assets and how kleptocrats and oligarchs protect and shift ill-gotten gains, what about private citizens who legitimately use offshore structures?
Is the publication of every document from the leaks, regardless of the private data exposed, justified because it promotes a more transparent financial system?
Or, does the publication of private data on law-abiding private persons violate the human rights explicitly protected by the United Nations and the Council of Europe, regardless of the good intention of those who publish? the data?