On July 15 2016 the Confidential Information Disclosure Law 2016 came into force in the Cayman Islands with the repeal of its predecessor, the Confidential Relationships (Preservation) Law (2015 Revision).
The new law modernises the Cayman Islands' approach to confidential information, doing away with the criminal penalties which accompanied its predecessor and bringing the deliberations over breach of confidence into the realm of the rules of equity and common law. It preserves many of the previous statutory exemptions through which disclosure of confidential information was permitted, such as disclosures made:
- with the prior consent of a principal or in the normal course of business;
- in compliance with requests by financial regulatory or local law enforcement authorities (including the Cayman Islands Monetary Authority, the Financial Reporting Authority, the Anti-corruption Commission and the police);
- pursuant to international requests from foreign regulators through local regulatory authorities or the Grand Court;
- to a member of the police (with the rank of inspector or above) in the investigation of a crime committed or alleged to have been committed in the Cayman Islands; or
- in compliance with the direction of a Grand Court judge.
Clause 3(2) of the law provides a further exemption permitting the disclosure of confidential information where such disclosure is made in relation to:
"A serious threat to the life, health, safety of a person or in relation to a serious threat to the environment... as long as the person acted in good faith and in the reasonable belief that the information was substantially true and disclosed evidence of wrongdoing."
This provision essentially introduces a 'whistleblowing' defence for disclosures made in good faith and is broadly consistent with the common law defence of a disclosure being made in the public interest.
The law otherwise remains largely unchanged and still requires the permission of the Grand Court before evidence is given, within or outside the Cayman Islands, which contains any confidential information published without the permission of the relevant principal.
The Grand Court remains empowered to restrict the manner in which, and the extent to which, evidence containing confidential information may be given, having regard to whether:
- such restrictions would deny the rights of an individual in enforcing a just claim;
- any offers of compensation or indemnity have been made; and
- such disclosure is in the interests of justice.
The law is expected to be a more user-friendly statute that continues to protect privacy and the unwarranted publication of confidential information, but without the same connotations of 'secrecy' that seemed to surround the previous regime. In this regard, despite being in place for close to 40 years, no criminal prosecution was ever brought for a breach of confidence under the previous law. Nonetheless, the abolition of the criminal penalties should have a meaningful effect on the way parties deal with information that could fall within the wide definition of 'confidential information'.
For further information on this topic please contact Ian Mann at Harney Westwood & Riegels' Hong Kong office by telephone (+852 3195 7200) or email ([email protected]). The Harney Westwood & Riegels website can be accessed at www.harneys.com.