Leaks of offshore corporate records have gained enormous popularity and continue to grow in scope and scale. The Pandora Papers, Paradise Papers, Bahamas Leaks, and Panama Papers have triggered investigations into kleptocrats, oligarchs, and public officials who failed to disclose their assets. But the vast majority of leaked information names private citizens acting lawfully. Does that create a human rights problem?
Before considering private citizens, let’s look at public officials. In most jurisdictions where they serve, they’re now required to disclose their assets, no matter where those assets are located. If the officials fail to disclose their assets, including their offshore holdings, they are likely to be violating disclosure laws.
What about kleptocrats and oligarchs — anyone who illegally loots national wealth and hides it offshore? Yes, they should also be exposed to public view. Journalists who help do that — sometimes at great personal risk — should be praised and encouraged.
While leaks concerning public officials and those who illegally acquire national assets should be publicly exposed, what about private, law-abiding citizens? Information related to them makes up more than 99 percent of the content in the leaks. Yet, those private citizens aren’t accused of violating any laws that apply to them. In those cases, do journalists have a legal or ethical duty or both to protect their personal and private information?
This isn’t a new question. For example, the International Consortium of Investigative Journalists (ICIJ), the DC-based non-profit that maintains a database of selected leaked information from companies incorporated in offshore secrecy jurisdictions or financial centers that frequently interact with these jurisdictions, includes this disclaimer on the database:
There are legitimate uses for offshore companies and trusts. The inclusion of a 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.
So, it’s clear there are legitimate private uses for offshore companies and accounts. And private citizens would also have a reasonable expectation of privacy in connection with their legal offshore activities. What, then, are the legal and ethical requirements for protecting their identities?
Here’s a relevant excerpt from the United Nation’s Declaration on Human Rights:
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Notwithstanding the ICIJ’s disclaimer, is maintaining a public database of leaked information naming a private citizen who isn’t accused of illegal activity an “attack upon his honor and reputation” per Article 12 of the UN Declaration on Human Rights?
What about headlines that often follow a leak and feature names of celebrities such as professional athletes? Is their “honor and reputation” being protected from attack?
In addition to the UN, the Council of Europe has spoken about basic human rights. Here’s language from the Council’s European Convention on 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 a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Are legal offshore dealings part of a person’s “private life”? And what about leaked information that’s derived from “correspondence” protected by the European Convention? Should such material be included in a database of leaked information or reproduced or referred to in news stories?
The European Court of Human Rights considered an analogous case in 2001. A Lithuanian woman’s private health data — the fact that she was HIV positive — was leaked to journalists and published. The Court said, “The newspaper had either deliberately sought to humiliate her or had intentionally allowed such negative consequences to occur.” She was awarded a small financial settlement because Lithuania did not “sufficiently prevent such outrageous abuses of press freedom.”
The Court added (with my emphasis), “The protection of personal data, not least medical data, is of fundamental importance to a person’s enjoyment of his or her 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 their disclaimer, “There are legitimate uses for offshore companies and trusts.” While exposing how certain public officials conceal offshore assets, and how kleptocrats and oligarchs protect and move ill-gotten gains, what about those private citizens making legitimate use of offshore structures?
Is publishing every name in the leaks, no matter whose private information is exposed, justified because it promotes a more transparent financial system?
Or, does publication of information about law-abiding private individuals violate human rights explicitly protected by the United Nations and the Council of Europe, no matter how well-intention those are who publish the data?