Banking Law

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TOPIC:
BANKING LAW
DUTY OF SECRECY:
HOW FAR HAS THIS RIGHT BEEN DILUTED IN MALAYSIA?

CONTENT

1. INTRODUCTION

2. DUTY OF SECRECY

1. Contractual Duty Of Secrecy

2. Statutory Duty Of Secrecy

3. DILUTION OF DUTY OF SECRECY IN MALAYSIA?

1. Dilution: Exceptions In Common Law

2. Dilution: Exceptions Under BAFIA

3. Dilution: Other Banking Statutes

4. Dilution: Non-Banking Statutes

4. CONCLUSION
5. APPENDIX

1.0INTRODUCTION:
In this millennium globalization era, trade competitions between countries are getting stiffer and inevitably Malaysia is susceptible to such commercial fray, e.g. in banking arena. Any right-thinking man, particularly businessman, setting foot in the bank would have expected the bank to provide the best services, inter alia, to keep all their personal information confidential. As such, duty of secrecy is one of the salient duties undertaken by the banker towards its customers.

0. DUTY OF SECRECY IN MALAYSIA
Upon opening the account with the bank, there is a contractual duty, under common law[1], on the banker not to divulge information of the customers to any third parties. Furthermore, in Malaysia, a bank is also under a statutory obligation[2] not to make any unauthorized disclosure .

1. Contractual Duty of Secrecy (Common Law)
In Tournier’s case, Court of Appeal unanimously[3] concurred that the duty of secrecy is contractual in nature and is to be implied from the banker-customer relationship.
However their Lordship differed as to the scope of this duty. Both Bankes and Atkin L.JJ expressed the view that this duty is not confined to information derived solely from a customer’s account but could extend to information derived from sources other than the customers own account, as long as the information is obtained during the banker-customer relationship[4]. Scrutton LJ however confined the scope of duty only to the information derived from the customer’s actual account[5].

As to the duration of this duty, the Court further held this duty arises only when the banker-customer relationship is established; and it continues even after the relationship ceases[6]. On the contrary, Scrutton L.J held that the implied duty should be ceased the moment banker-customer relationship ends.[7]

2.2 Statutory Duty of Secrecy
In addition to the general principles enunciated in Tournier’s case, the statutory provisions governing banking secrecy are found in Part XIII: Information and Secrecy, the BAFIA.
Firstly, section 96 outlaws Financial Minister to direct Central Bank or authorize Central Bank to inquire specifically into the affairs of any individual bank customer[8].
Section 97(1) is the main pillar and bone of the duty of secrecy. Generally, it imposes a strict duty on the directors or officers of the bank, any external bureau or agent of a bank and ‘any other persons’ who have access to the information of the customer, e.g. accountants, lawyers, police and liquidators to maintain confidentiality. The directors, officers, external bureau and agents of a bank are restricted from making any unauthorized disclosure during and even after their tenure of employment; whilst for those having access to that information must preserve the secrecy perpetually[9]. In short, safe it is permissible by law, a person would be held liable if the confidentiality of the bank’s customer is divulged to third party.[10]

Furthermore section 97(3) prohibits the subsequent recipient of the information (3rd party) to disclose the same to another or else he will be liable for breach of secrecy too.
Section 99(2) states that any information obtained during an in camera proceeding shall be secret between the court and the parties involved; whereas section 99(3) forbids all information acquired from that in camera proceeding, viz name, address or photograph of any...
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