Chukwuemeka Cameron |Public interest vs privacy

Recent events involving Minister Daryl Vaz’s public disclosure of personal data about Mark Golding have thrust the delicate balance between privacy rights and public interest into the spotlight. This incident raises critical questions about how personal data should be handled, the responsibilities of those who control it, and the implications for public trust and accountability. As Jamaica prepares to fully implement the Data Protection Act (DPA) on June 1, the stakes have never been higher.

Understanding the complex layers of this issue is crucial, as they not only impact the immediate parties involved, but also set precedents that affect every Jamaican citizen’s right to privacy and the integrity of public office.

What Information Did Minister Vaz Disclose?

Vaz publicly shared details about when Mark Golding received his Jamaican passport and when he obtained a UK visa. The People’s National Party (PNP) has asserted that he unlawfully accessed and broadcast this information, which involved private interactions with the Passport, Immigration and Citizenship Agency (PICA) — information that Jamaicans rightfully expect to be maintained in strict confidence for every citizen. Minister Vaz responded by saying that he received this information from a member of the PNP.

There have been several news bites from individuals trying to assess whether there has been a data breach. However, this is a multilayered issue that cannot be effectively discussed through short news snippets. Given the upcoming implementation of the DPA, it is timely to use this opportunity to further explore the right to informational privacy — a constitutional right recently affirmed by the court in the NIDs decision — and how the DPA will operate.

Our Constitutional Court, in 2019, declared that all citizens of Jamaica have a right to informational privacy, i.e., no one can process one’s personal data without their authorisation. The DPA, however, makes it possible for data controllers to lawfully process persons personal data, as long as they follow certain data-processing standards. The act has gone further and, in an effort to protect persons whose personal data is being processed, has criminalised certain data-processing activities.

In particular, Section 61 of the DPA states that you are not allowed to obtain or share someone else’s personal data without getting permission from the person responsible from the data controller. This rule does not apply if, among other things, obtaining or sharing the information is justified because it serves the public interest. If you break this rule, you could be fined up to $5 million or sent to prison for up to five years by a parish court. Or you could be fined an amount decided by a Supreme Court judge or sent to prison for up to 10 years.

What is personal data?

Let’s break this down. For these purposes, personal data is any information that can be linked to an identifiable person. This means it could be any detail that tells us something about someone, either directly or indirectly. In this case, the information Vaz shared about Golding — specifically, when he received his Jamaican passport and a UK visa — is considered personal data. This is because:

Identifiable Information: Golding was specifically named.

Private details: The shared details about his passport and visa status are private information about him.

When you put these pieces together, it creates a clear picture of private aspects of Golding’s life. By linking his name with his passport and visa information, Vaz disclosed personal details that fall under data protection laws because they are specific to Golding and can identify him. This is why the information is classified as personal data.

It is clear that Vaz did obtain Golding’s personal data and shared it. The only question to be determined is, could the obtaining and sharing of this personal data be deemed to be in the public interest. Vaz, in his discussion with Cliff Hughes on Nationwide, stated that the issue at hand is whether we feel that Golding’s loyalty is to the Jamaican people and not to the UK. And the extent to which his loyalty impacts on the position he is taking in relation to our Constitution.

Political Speech and Public Interest

According to the Baroness Hale Of Richmond in the House of Lords decision of Naomi Campbell v MGN Limited [2004] UKHL 2 there are different types of speech, just as there are different types of private information, some of which are more deserving of protection in a democratic society than others. Top of the list is political speech. The free exchange of information and ideas on matters relevant to the organisation of the economic, social, and political life of the country is crucial to any democracy. Without this, it can scarcely be called a democracy at all. This includes revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life.

The principles of political speech and the public’s right to know about their leaders’ true circumstances, in particular around their nationality and which passports they hold, are grounded in the constitutional requirement for public officials to demonstrate their loyalty and commitment to the nation. This brings us to the oath of allegiance.

Oath of Allegiance a matter of public interest

Section 40 of the Constitution of Jamaica states that all members of parliament, ministers, and other public officials are required to take an oath of allegiance before assuming office. This oath is a formal declaration of loyalty to Jamaica and its Constitution, ensuring that public officials are committed to serving the country’s interests and upholding its laws. The oath of allegiance is a critical aspect of ensuring that public officials are dedicated to the nation they serve. For politicians, particularly those in significant positions, such as the leader of the Opposition or a potential prime minister, their allegiance is a matter of public concern. Here’s why:

Public trust and accountability: The public has a right to know if their leaders are fully committed to the country’s interests. The oath of allegiance is a formal declaration that a public official will serve Jamaica loyally and uphold its laws. Any information that questions this commitment is, therefore, relevant to the public.

Transparency and integrity: Ensuring transparency in the political process is crucial. If a public figure has held, or currently holds, a foreign passport, it could imply potential conflicts of interest. Disclosure of such information helps maintain the integrity of public offices.

Historical precedent: Issues of allegiance have been litigated in Jamaican courts, emphasising their importance. The public interest in these cases is clear, as the courts have ruled on the eligibility of individuals to hold public office based on their allegiance.

Relevance to public life: The free exchange of information and ideas on matters relevant to the organisation of the political life of the country is fundamental to democracy. Revealing information about public figures, especially those in elective office, which would otherwise be private but is relevant to their participation in public life, is essential for an informed electorate.

Political expression and setting the record straight

There is also a second element which makes this a matter of public interest, if we were to adopt the reasoning of Lord Nicholls of Birkenhead. where he stated that where a public figure chooses to present a false image and make untrue pronouncements about their life, the press will normally be entitled to put the record straight. This principle was highlighted in Campbell’s case, where her public statements about her addiction and treatment were already in the public domain. The question then arose whether further information related to her attendance at Narcotics Anonymous meetings retained its character of private information.

Similarly, with Golding, having put his nationality into the public domain, the question arises whether the further information relating to the specific dates he obtained his Jamaican passport and visa retains its character of private information sufficiently to engage the protection afforded by the right to informational privacy.

On or around January 16, 2023, Golding was on podcast, ‘The Fix’, where he discussed his nationality.

He said: “In November on a diaspora tour, I had to go and apply and get my visa, and it was a pretty demeaning process. Under our Constitution, you can be eligible to be in Parliament as long as you’re not a citizen of a foreign country, which means a non-Commonwealth country. I was born here in Jamaican, as a child I also had a British passport, but I don’t intend to maintain that passport because I feel, in the position I have, it was a convenient travel document in the past, but I think I can’t be holding this position and maintaining that . . ..”

This statement by the leader of the Opposition put his nationality and passport status into the public domain. He also left the listening public to believe, without saying it, that he held a Jamaican passport as a child when he states that he “also” had a British passport. If we were to follow the reasoning of Lord Nicholls of Birkenhead, it would have been in the public interest for Vaz to set the public record straight and disclose when Golding really got his passport.

Conclusion

The disclosure of personal data by Vaz has sparked a significant debate on privacy rights versus public interest. While the DPA emphasises the need for consent in processing personal data, it also allows exceptions for disclosures justified by public interest. Vaz’s actions, driven by concerns about Golding’s allegiance, given his role as the leader of the Opposition and a potential prime minister, fall into this category. Political speech is highly protected in a democracy, and the public has a right to know if their leaders have potential conflicts of interest, especially regarding dual nationality and foreign passports. Mark Golding himself put his nationality and passport status into the public domain, but left out specific details about when he obtained his Jamaican passport, leading to incomplete public understanding. Vaz’s disclosure clarified these details, reinforcing transparency and accountability, which are crucial for a functioning democracy. This case highlights the delicate balance between privacy and public interest, emphasising the importance of transparency and informed public discourse to maintain trust in public officials.

Chukwuemeka Cameron is an attorney-at-law with a masters in information technology and management. He is also a privacy practitioner and an ISO 27001-certified lead implementer. He is also the founder of Design Privacy, a consultancy firm that help companies comply with local and international privacy laws.