The shock and outrage at the personal information that was visible on a public search of the online National Security Interests in Personal Property Registry (NSIPP Registry) dominated recent media headlines, notably the Gleaner’s article dated February 15, 2015. The indignation generated was such that the Minister of Industry, Investment and Commerce, Hon. Anthony Hylton, has taken the dramatic step of suspending the public search feature of the NSIPP Registry.
To commercial attorneys, bankers and other persons connected to the relevant sectors, this belated response has caused some bemusement. Firstly, because the Security Interests in Personal Property (SIPP) Act was passed in December 2013 and came into force over a year ago, on January 2, 2014, and the NSIPP Registry became operational very soon thereafter. Secondly, because since stakeholder consultations began a couple of years ago on the early drafts of the then SIPP Bill, concerns have been expressed about the potential privacy issues. After the SIPP Act was passed, such concerns were repeated at sensitisation sessions held by Companies Office of Jamaica and the Ministry of Industry, Investment and Commerce, magnified because the ease of the search and the extent of the information generated by it, on individuals not just companies, were then apparent. The response to concerns raised was usually that similar registries in other jurisdictions publicly displayed similar information.
During seminar presentations of our law firm during 2014 to clients and the public at large, whenever I conducted searches on the NSIPP Registry for the benefit of the audience, a discernible shockwave would pass through the room when the audience realised that anyone with access to the internet could enter any name into the database and view for individuals with that name or similar names, their address, debt(s) to named financial institution(s) or hire purchase companies, and assets given as security or bought on hire purchase, which often comprised a person’s motor vehicle (including the vehicle identification number), or in some cases, a list of all of the furniture and appliances in their home. Apart from the intrusiveness of John Public being privy to one’s private financial business, many saw it as a grave security concern that criminal elements could so easily make themselves aware of one’s address and the specific assets in one’s possession.
The ultimate aim of the SIPP Act is laudable – to spur economic growth by improving access to credit for entrepreneurs and investors, especially in the micro, small and medium sectors. One of the central ideas behind the Act is that potential creditors will be more willing to lend if they can easily and reliably discover whether a potential borrower has taken loans from and pledged security to other lenders. However, one may question whether a registry with information nearly fully open to a free public search is necessary to accomplish that aim.
There are models operating currently in Jamaica which show that there are alternatives. For example, under the Credit Reporting Act, 2010 (CRA) which shares some similar objectives to the SIPP Act in seeking to create a credit market that is more informed, and therefore more efficient and accessible, there are controls in place to protect the confidentiality of “credit information”, which is defined to include the amount and nature of loans and the nature of security taken from the consumer in respect of credit facilities. Under the CRA, only certain listed types of entities, including licensed banks, financial institutions, building societies, co-operative societies, securities dealers, insurance companies and credit bureaus; hire purchase companies; the NHT; the Student Loan Bureau and the Development Bank of Jamaica, qualify as “credit information providers” that are permitted to supply credit information to licensed credit bureaus. Credit bureaus can only disclose credit information to credit information providers that have the consumer’s written consent, to comply with a court order, to the supervising authority (currently the Bank of Jamaica), to the consumer himself, to a police constable that has presented a statutory declaration in the prescribed form (limited only to identification information), or as provided by the CRA or another law or designated by the Minister of Finance. A credit information provider that is not a credit bureau can disclose and use information obtained from credit bureaus only in connection extending credit to or collecting debt from consumers, or with the consumer’s written permission to facilitate the consumer’s employment, insurance or commercial transactions, or otherwise according to the consumer’s written directions.
In a similar fashion, the SIPP Act and Registry Rules could prescribe the persons permitted to access information pertaining to an individual on the NSIPP Registry, the requirements to access such information, and the different levels of information that can be accessed. It may be preferable to limit access only to lenders (and persons associated with lending and security such as lawyers, accountants, insolvency practitioners, credit bureaus etc.), the police and courts in prescribed circumstances, the individual himself, and applicants that have the individual’s consent or can demonstrate that they have a legitimate interest in the information (e.g. the potential purchaser of a motor vehicle could be permitted to search for existing charges on that motor vehicle).
The current brouhaha concerning the NSIPP Registry demonstrates that even as our lawmakers attempt to meet ambitious deadlines in the legislative timetable, often in order to, commendably, comply with their commitments to international lenders, proper account must be taken of the concerns of stakeholders and the public at large, preferably before a particular piece of legislation is brought into effect.