I always feel like somebody’s watching me… and I have no privacy

On 4 December 2024, the Guernsey Court of Appeal handed down its judgment in the matter of Fuller & Ors v Guernsey Financial Services Commission [2024] GCA083 refusing an application to the Court of Appeal for the substantive appeal to be heard in private.

The substantive appeal was an appeal against the decision of a Guernsey Financial Services Commission (GFSC) Senior Decision Maker (SDM) in regulatory proceedings against several individuals involved in a collapsed financial firm in Guernsey.  The GFSC regulatory proceedings themselves are usually conducted in private, and the resulting Public Statements can have significant implications for the reputations of those involved.

The presumption in favour of privacy

Prior to November 2021, the Financial Services Commission (Bailiwick of Guernsey) Law, 1987 (the FSC Law) contained a presumption in favour of privacy in relation to appeals against a decision to publish a Public Statement (namely section 11H(7) of the FSC Law).

Judgments on appeals under the FSC Law were usually published with the names of the parties, and any relevant institutions or individuals involved anonymised, to respect this privacy regime.

The presumption in favour of privacy was removed by virtue of section 106(9) of the Financial Services Business (Enforcement Powers) (Bailiwick of Guernsey) Law, 2020 (the FSB Law), which repealed section 11H(7) of the FSC Law.

The Court of Appeal held that “the legislative intent behind the repeal of s11H(7) is clear; the ordinary principles of open justice should apply to the hearing of appeals, even in the area of financial service regulation, where there will inevitably be reputational consequences from publicity attendant upon any appeal.”

So what principles now apply to regulatory appeals?

The Court of Appeal held that, when considering privacy in the context of regulatory appeals, the principles to be applied are those which would apply in any proceedings where privacy is sought.

The starting position is as set out in IFS Investments Ltd v Manor Park (Guernsey) Ltd [2003], particularly that the principle of open justice is a fundamental principle of the administration of justice in Guernsey.

However, this presumption may be rebutted in circumstances of strict necessity in the interests of justice. The Court of Appeal held that, even if there were any question of balance, the focus would not be on any prejudice, or lack thereof, to the Respondent. Notably, the Court of Appeal stated that “the counterweight to any privacy plea is the wider interest of society in open justice, not the interests of the financial services sector.”

Accordingly, any decision to suspend publication of an SDM’s decision, or consent by the Respondent to have proceedings heard in private are to have no bearing on whether the subsequent appeal is to be heard in private. It is for the Appellants to demonstrate that the publication of any proceedings on appeal would have severe reputational and financial consequences for them. In the case at hand, the Appellants were not able to demonstrate such consequences and therefore the application was refused.

Open justice

It follows from this recent decision that, even if there is somebody watching you (or the outcome of regulatory proceedings), you have no automatic right to privacy.

The Court of Appeal referred to the decision of Lieutenant Bailiff Hazel Marshall KC in Domaille and Clarke v GFSC [2023] which states that there is rarely a need to restrain the publication of an appeal even where the contested decision by the GFSC will has reputational or financial consequences.

If the appeal fails, any adverse publicity will not have been unjustified, and if it succeeds then the Appellants can explain that the GFSC’s decision has been held to be wrong.  Even so, our view is that that is likely to be of very little comfort to the individuals involved.

Please contact Robin Gist, Alison Antill, Rebekah Johnston, Jana Valkovska, Charlotte Tomlinson, Glyn Davies or your usual contact at Ferbrache & Farrell, for any advice on this issue.