Privacy is under assault. Although there have been a few victories, AI, political pressures about wealth and other forces are fuelling the debate on privacy. Industry figures thrashed out the issues in Monaco earlier this month, and your correspondent was part of the debate.

Privacy is a fundamental right in Europe. A ruling by a top European court in 2022, which shot down the idea of public registers of beneficial ownership, is an example of how the battle over legitimate privacy is playing out, a conference in Monaco heard earlier in March. 

As reported here the Court of Justice of the EU made a decision that highlighted a fight against the erosion of privacy, Filippo Noseda, partner, Mishcon de Reya, told a conference hosted by TrustConsult Group at Monaco’s Fairmont Hotel. (TrustConsult provides wealth planning, works in areas such as trusts, private trust partners, and property. It operates in Luxembourg, Monaco, Geneva, Belgium and Hong Kong. See here for the preview article.)

It is worth remembering, Noseda said, that the EU’s enshrining of privacy as a right several decades ago responded to totalitarianism on the continent a few decades before.

Noseda, who has led a number of legal challenges on issues such as beneficial ownership disclosures, was among a number of experts from the legal, wealth, media and trusts sectors who looked at different aspects of privacy. They discussed how financial privacy is under assault, why these attacks have happened, the balance to be struck with transparency, and the impact of technologies such as cryptography, digital currencies, AI and blockchain. (WealthBriefing also interviewed Noseda last year about privacy.)

Among the points that emerged is that a younger generation does not appear to be concerned about privacy, but in time they are likely to be. And recent history, as seen by the demands for medical data amid the pandemic, the Ed Snowden claims about domestic US spying, pushback against press intrusion, and other moves, suggested that there is all to play for in the world of privacy.

The panels
In the first panel, entitled “Why Privacy Still Matters,”, several speakers noted the dichotomy between governments demanding transparency among private individuals and companies, but not meeting those demands themselves. Christian Bühlmann, CEO of TrustConsult Group, for example, said this double standard is not sustainable. “We have seen the lives of people being ruined by naming and shaming,” he said. 

Fellow panellist Guillaume Grisel, partner, Schellenberg Wittmer, said that many in financial services and elsewhere were reluctant to make the case for privacy. “It is first and foremost a human right,” he said. If the letter of the law is honoured, the fact that some might dislike such privacy is irrelevant, Grisel said. 

Myret Zaki, journalist at Switzerland’s Bilan publication, noted the various asset freezes, “leaks” (such as the Panama Papers case) and others where specific jurisdictions were in the firing line. Just as notable, she said, is how there are certain countries that appear to be free from such data leaks and this suggests there is a power dynamic in play. “You don’t have London Leaks, Hong Kong Leaks or Delaware Leaks,” she said. 

Claire Ankri-Avyi, lawyer, CMS Francis Lefebvre Avocats, noted that organisations such as the European Union and OEOC have been pushing for compliance and transparency on a number of areas, raising the question of whether authorities think privacy is important.

Pierre-Jean Douvier, partner at CMS Francis Lefebre Avocats, noted that as far as possible, Monaco attempts to maintain as much privacy and confidentiality as possible while going along with international standards. 

Grisel noted that in 2004 progress was made when Princess Caroline of Monaco won a landmark legal victory when Europe's top human rights court ruled that the German press had violated her right to privacy by publishing photographs of her and her children.

Bilan’s Zaki said specific legal cases were often how people learned about where the boundaries of privacy are – a situation likely to continue as more test cases arise, she said. 

Grisel said that it is also important to distinguish between intentional and unintentional leaks of information, for instance when a person unwittingly gives away their location to potentially hostile third parties by not being careful in how they use social media.

Legalities
In the second panel, entitled “Is privacy still allowed?” speakers wrestled with how, in Monaco, for example, the jurisdiction is putting its data protection regime on the same broad footing as that of the European Union. The principality is a member of the Council of Europe. 

Alex von Stein, managing partner, Spencer Ship Monaco, told the audience that the jurisdiction is currently putting the yachts sector under a sharp spotlight, treating it is an industry that needs to be scrutinised. “It is becoming untenable for certain types of companies that need to be able to complete certain transactions on time,” he said. (It was later noted during this panel that the Council of Europe’s MONEYVAL group is scrutinising Monaco’s AML controls, suggesting that local banks and other financial institutions are erring on the side of caution when taking on clients.)

Maurizio Cohen, managing partner, Interlaw Monaco, said that the jurisdiction has had a gap to fill regarding AML laws and processes, and that gap has been tackled. “You need to [have] an enormous amount of information about clients, reports from you, counterparties and back, and so forth,” he said. As for the MONEYVAL evaluation process, Monaco is in the middle of a review period. There will be a move in a pendulum towards a position between extremes, he said.

Thierry Boitelle, of Leiden University, and of Boitelle Tax, switched the focus to Switzerland. He pointed out that for all the changes to Swiss bank secrecy laws of recent years, domestic Swiss banking remained covered by bank secrecy. “It is still in place and we have a level of financial privacy,” he said.

Cécile Civiale Vuillier, partner, TrustConsult Suisse, said of the Alpine state that it is “one place where we can offer a level of financial privacy."

Von Stein queried the idea that governments are requiring private firms to be the police for the system. “That’s not our business,” he said. 

Boitelle said a good way for financial sector figures to frame the argument for privacy is to talk about security, because this shows how what is at stake is not just about protecting large sums of wealth. 

Cohen said one force to contend with is social pressure and concerns about inequality; many people don't care much about financial privacy because they think the demands for transparency don’t directly affect them.

When asked about the different topic of AI, Boitelle highlighted the tension between the desire for complete data transparency and the need for data protection. The AI phenomenon creates a “privacy problem on steroids,” he said.

The media perspective
In the third panel, conversation switched to what journalists think wealthy individuals and families can and should do to protect themselves from media intrusion, and understand what the legitimate boundaries should be. 

Myret Zaki said one mistake that HNW families and individuals should avoid is trying to block any interaction with the media at all. In fact, families that run significant businesses, and engage in a community, for example, must accept that media coverage is entirely normal. To manage it, families must be consistent in how they behave and what they say – it is not sensible to talk about helping the world and the environment if one runs a toxic business, for example, she said.

WealthBriefing group editor Tom Burroughes said families should have a consistent narrative about how they created and manage their wealth, so that they are ready as and when the media approaches them.

Also, the cost and work of reputation management demonstrates the value of family offices, and of advisors who can mentor family members on how to deal with the media, and so on. Burroughes said his own experience in educating students about situational awareness of fake news and social media gave him an insight into the sort of training that families should look at. He added that an adversarial approach to the media is not wise, because good journalists want to talk to wealth creators and entrepreneurs.

Cryptos and structures
In the fourth and final panel, the discussion switched to how blockchain/cryptoassets, as well as the use of certain structures, might be a way to protect privacy in transactions. 

Grégoire Mure, CEO TrustConsult Luxembourg, talked about entities such as Private Investment Funds, which are used for structuring and private wealth management.They allow the private client can act through a general partner, rather than the fund. 

“The fund holds the assets and the assets are managed by the GP. In that case, the client can keep a degree of privacy in the investments because the client is not the owner of the fund,” he said. “Another structuring solution with privacy benefits is securitisation. This vehicle can organise the dispossession of assets of a client. In exchange, the client will receive a bond issued by the securitisation vehicle. Consequently, there is an opacity because the register for the bonds is not public. In Luxembourg, securitisation can create a degree of privacy protection,” he said.

Patrice Sauro, CFO and executive director at TrustConsult Group, talked about the benefits of blockchain-based financial transfers in creating a level of robustness and confidentiality. However, he said there is a footprint on a blockchain – it is a mistake to think of such tech as a complete protection of anonymity. 

Will Adams, executive director, Private Trust Partners, argued that privacy only benefits users if it gives them autonomy, and therefore that crypto-related solutions etc should not be overly complicated. “If you can ensure ownership, then you can, for example, insure those assets,” he said.

Ramy Torbey, EPTALEX Law Firm (managing partner in Beirut and senior partner in the UAE), said that in the United Arab Emirates, privacy is a “sacred principle.” 

“It is trying to commit to transparency and it has got off the [FATF] grey list,” he said. In 2021, the UAE enacted a personal data protection law, akin to the European GDPR. The UAE’s company register involves very strict access conditions, such as restricting information to certain persons, he said. 

Philippe Reynier, CEO of WECAN, talked about the importance of secure communications. “If your system is hacked, messages are intercepted or shared with the state…you don’t have privacy anymore.”

Governments have been cracking down on the use of certain messaging apps by bankers and others, such as the use of WhatsApp, he said.

Will Adams added that family offices can, for example, have their own private “blockchains” that can be kept completely secure.

In summing up the conference, Bühlmann said the discussions showed that the tensions between privacy and transparency were not always easy to solve. Nevertheless, it was vital for the wealth industry, regulators and policymakers to keep seeking a resolution. 

“Thanks to the presence of first class subject matter experts, the event was the opportunity to raise awareness of the audience on the fact that privacy is no longer a given. Privacy must be defended from media, government and anyone that has an interest to break into your personal life – this would inevitably lead to your freedom being at risk, when not representing an immediate and very often harmful threat to yourself,” he added.

(Tom Burroughes writes: I was delighted to be invited to speak at this event and explain a journalist's perspective on privacy, transparency and the balancing act that this gives rise to. The whole private banking/wealth management value proposition must retain the principle of "protecting the client." This is a complex issue; new technologies, social pressures and attitudes mean that the privacy conversation is never static. The editorial team intends to keep the debate bubbling. I also value readers' opinions and suggestions, so please email me at tom.burroughes@wealthbriefing.com)