Confidentiality requirements for shared information

1    Introduction

This briefing note outlines the confidentiality requirements that apply to information provided to us by an overseas supervisory authority, law enforcement agency, or regulatory officer (Requesting Authority).

Any information we receive under, or for the purposes of, our regulatory laws is classified as “restricted information.” The laws governing how we must handle restricted information fall into four main categories, outlined below.

You can access copies of the relevant legislation on the Jersey Legal Information Board website: www.jerseylaw.je.

2    Category 1: Financial services legislation

Under this legislation, we prudentially supervise businesses that carry out specified types of financial services.

The following laws are collectively referred to in this guidance as financial services legislation, and they form the basis for our prudential and conduct supervision:

  • Banking Business (Jersey) Law 1991
  • Collective Investment Funds (Jersey) Law 1988
  • Financial Services (Jersey) Law 1998
  • Financial Services (Disclosure and Provision of Information) (Jersey) Law 2020
  • Insurance Business (Jersey) Law 1996
  • Alternative Investment Funds (Jersey) Regulations 2012

The Financial Services Law gives us the authority to investigate suspected cases of insider dealing and market manipulation.

3    Category 2: AML/CFT/CPF oversight legislation

Under the Proceeds of Crime (Supervisory Bodies) (Jersey) Law 2008 (Supervisory Bodies Law), we oversee businesses for their compliance with AML/CFT/CPF and related regulatory requirements.

4    Category 3: Oversight of non-profit organizations legislation

Under the Non-Profit Organizations (Jersey) Law 2008 (NPO Law) the JFSC has an obligation to help determine if the Non-Profit Organization is assisting or being used to assist terrorism or terrorist financing.

5    Category 4: Companies legislation

Under the Companies (Jersey) Law 1991 (the Companies legislation) the JFSC has the power to appoint an inspector to investigate and report upon the affairs of a Jersey company.

6    Provisions applying to information disclosed by a requesting authority

This section explains how Jersey law protects information received from a Requesting Authority. We may only disclose such restricted information if we are legally required to do so or if a statutory information gateway permits the disclosure, as detailed below.

6.1    Statutory information gateways

The provisions governing how we handle restricted information and the mechanisms (known as information gateways) through which it may be disclosed, differ slightly across the four categories of legislation outlined in the introduction to this briefing note. Each category is therefore described separately below. These information gateways permit, but do not require, us to share information.

When we receive information from a Requesting Authority that includes restrictions on its use, we will respect those restrictions unless we are legally obligated to disclose the information or a court order compels us to do so. If we decide to voluntarily disclose such information without the consent of the Requesting Authority, the Royal Court may, upon application by the Requesting Authority, issue an injunction to prevent the disclosure.

6.2    Legal obligation to provide information

Under Jersey law, we are legally required to disclose information in certain circumstances, as outlined in the table below.

If we receive a legally enforceable demand for information, such as a court order (see the relevant section below) and the information in question was originally provided to us on the condition that it would not be disclosed without the consent of the Requesting Authority, we may apply to the Royal Court to impose a duty of confidence on us. In such cases, the Court may still decide to override the confidentiality condition and order disclosure if it determines that the interests of justice require it.

6.3    Data protection legislation

We are also bound by the Data Protection (Jersey) Law 2018 (the Data Protection Law), which protects personal data, meaning information about living individuals, and governs how we may disclose such data both within Jersey and internationally.

In general, if we are satisfied that restricted information can be disclosed under one of the four categories of legislation outlined above, that disclosure will also comply with the Data Protection Law.

Category 1: Financial services legislation

Under Jersey’s financial services legislation, any disclosure of information received under, or for the purposes of, that legislation is generally a criminal offence. This includes information provided by a Requesting Authority for the purpose of our regulatory functions. However, disclosure is permitted in the following circumstances:

  • consent from the person whom the information was obtained, and (if different) the person to whom it relates
  • where the information is already available to the public from other sources
  • where the information is in the form of a summary or collection of information so framed that it is not possible to ascertain information relating to any particular person
  • where the information shows whether a person is registered, holds a permit or certificate - this includes the disclosure of any conditions which are attached to a registration, permit or certificate
  • where we are legally obligated or has an information gateway to disclose information by law (see Section 7 below)

Table 1 Information Gateways under financial services legislation

Gateway to: Circumstances in which the gateway may be used:
Viscount (Executive Officer of the Royal Court) Within the Viscount’s legal remit
Comptroller and Auditor General (examines how public bodies spend money and looks at how best they can achieve value for money) For the purpose of enabling or assisting the carrying out of any of the Comptroller and Auditor General’s functions in relation to the JFSC
Any person in Jersey exercising a statutory function For the purpose of enabling or assisting that person to exercise their statutory functions in relation to any person or class of person in respect of whom the JFSC has or had statutory functions
Any person in Jersey exercising a statutory ‘control function’ (such as granting licences, registrations, etc.) For the purpose of enabling or assisting that person to exercise their statutory control functions in relation to any person or class of person in respect of whom the JFSC does not have statutory functions
Jersey Financial Services Ombudsman For the purpose of enabling or assisting the Ombudsman to exercise any function under the Financial Services Ombudsman (Jersey) Law 2014
Any person
  1. For the purpose of enabling or assisting any of the following:
    1. the JFSC or any person acting on its behalf
    2. a person appointed under an enactment by any of the following:
      1. the JFSC
      2. the Royal Court, on the application of the JFSC
      3. a Minister, where that Minister and the JFSC are each specified in that enactment as having power to appoint that person

to discharge the JFSC’s functions or that person’s functions under the Financial Services Legislation or under any other enactment

  1. To show whether or not any person is registered, or was formerly registered, under the Financial Services Legislation including any conditions which are, or were formerly, attached to the registration
  2. With a view to the investigation of a suspected offence, or institution of, or otherwise for the purposes of, any criminal proceedings in terms of Jersey law
  3. In connection with any proceedings arising out of Financial Services Legislation
Overseas Supervisory Authority To assist in the exercise of one or more of its supervisory functions
the public

The name of:

  1. a director of a company that carries on investment business and is registered under the Financial Services Law
  2. a director of a company that is a partner in a partnership that carries on investment business and is registered under the Financial Services Law
  3. a person employed as a dealer, discretionary investment manager, adviser or supervisor by a person that carries on investment business and is registered under the Financial Services Law

See our website for Details of Registered Persons’ Senior Management and Investment Employees
Attorney General (Chief Prosecutor) or police officer (in respect of information that is collected under Financial Services Legislation or otherwise in the possession by us for certain uses under the Financial Services Legislation) Any information disclosed by the JFSC may only be subsequently disclosed by the Attorney General or a police officer for the purposes of an investigation into a suspected offence or a prosecution in Jersey or, at the discretion of the Attorney General
Any person or body responsible for a compensation scheme in relation to one or more financial services Where it appears to us that disclosing the information would enable or assist the recipient of the information or us to discharge its functions, but any such disclosure may only be made if the recipient has given to us a written undertaking that the information will not be further disclosed without our prior consent.

Auditor of:

  1. a registered person
  2. a formerly registered person or
  3. a person who appears to us to be carrying on, or has carried on, unauthorised business
 Where it appears to us that disclosing the information would be in the interests of customers or potential customers of the person
An international body or organisation whose functions include the assessment of Jersey’s compliance with international standards of financial regulation For the purpose of enabling or assisting the body or organisation to discharge its assessment function
Professional body responsible for setting standards and disciplining persons who fail to meet those standards (e.g. professional accounting bodies and law societies) To enable or assist the body to discharge its functions in relation to a person who fails, or is alleged to have failed, to meet the body’s set standards
The European Banking Authority
The European Insurance and Occupational Pensions Authority
The European Securities and Markets Authority
The European Systemic Risk Board		 To assist these authorities in the exercise of any of their functions
A supervisor of a securities market To assist the supervisor in the exercise of any of their functions
Law enforcement agencies the Financial Services Disclosure Law defines law enforcement agencies to include the police force of an Overseas Jurisdiction as well as the UK’s FCA, Serious Fraud Office, National Crime Agency  Access to beneficial ownership and significant persons registry for the purposes of investigation or prosecution of an offence
Regulatory Officers - The definition of regulatory officers extends to governmental agencies and organisations exercising administrative functions with respect to the incorporation of entities outside of Jersey Access to beneficial ownership and significant persons registry for the purposes of assisting the officer in their functions
Law enforcement Agency as an authority or person responsible for the investigation or prosecution of offences under the Sanctions and Asset Freezing (Jersey) Law 2019 or relating to money laundering or terrorist financing For the purposes of investigation or prosecution of an offence
Local competent authorities Can facilitate access, exchange information, or obtain beneficial ownership information on behalf of a foreign competent authority in terms of the that law
A relevant person as interpreted by the Money Laundering (Jersey) Order 2008 We may disclose beneficial owner information kept in the register to assist a relevant person to fulfil its obligations in terms of the Money Laundering (Jersey) Order 2008

Category 2: AML/CFT/CPF oversight legislation

The Supervisory Bodies Law broadly makes any disclosure by the JFSC of information received under, or for the purposes of, this law a criminal offence, including information supplied to us by a Requesting Authority for the purposes of our functions, except in the following circumstances:

  • consent from the person whom the information was obtained, and (if different) the person to whom it relates
  • where the information is already available to the public from other sources
  • where the information is in the form of a summary or collection of information so framed that it is not possible to ascertain from it information relating to any particular person
  • where the information shows whether a person is registered under the Supervisory Bodies Law, including any conditions attached to a registration
  • where we have a gateway through which to disclose information (see table below)
  • where we are obligated to disclose information by law (see Section 7 below)

Table 2. Information gateways under AML/CFT/CPF oversight legislation

Gateway to: Circumstances in which the gateway may be used:
Viscount (Executive Officer of the Royal Court) No restriction
Comptroller and Auditor General (examines how public bodies spend money and looks at how best they can achieve value for money) For the purpose of enabling or assisting the carrying out of any of the Comptroller and Auditor General’s functions in relation to the JFSC
Any person in Jersey exercising a statutory function For the purpose of enabling or assisting that person to exercise their statutory functions in relation to any person or class of person in respect of whom the JFSC has or had statutory functions
Any person in Jersey exercising a statutory ‘control function’ (such as granting licences, registrations, etc.) For the purpose of enabling or assisting that person to exercise their statutory control functions in relation to any person or class of person in respect of whom the JFSC does not have statutory functions
Any person

For the purpose of enabling or assisting any of the following:

  • the JFSC or any person acting on our behalf
  • a person appointed under an enactment by any of the following: 
  1. the JFSC
  2. the Royal Court, on the application of the JFSC
  3. a Minister
  4. to discharge the JFSC’s functions or that person’s functions under this law or under any other enactment
  • To show whether or not any person is registered, or was formerly registered, under this law including any conditions which are, or were formerly, attached to the registration
  • With a view to the investigation of a suspected offence, or institution of, or otherwise for the purposes of, any criminal proceedings in terms of Jersey law
  • In connection with any proceedings arising out of this law
Overseas Supervisory Authority To assist in the exercise of one or more of its supervisory functions
Attorney General (Chief Prosecutor) or police officer (in respect of information that is collected under this law or otherwise in the possession of the JFSC for certain uses under this law) Any information disclosed by the JFSC may only be subsequently disclosed by the Attorney General or a police officer for the purposes of an investigation into a suspected offence or a prosecution in Jersey or, at the discretion of the Attorney General, elsewhere

Auditor of:

  1. a registered person
  2. a formerly registered person or
  3. a person who appears to the JFSC to be carrying on, or has carried on, unauthorised business
 Where it appears to the JFSC that disclosing the information would be in the interests of customers or potential customers of the person
An international body or organisation whose functions include the assessment of Jersey’s compliance with international standards of AML/CFT/CPF regulation and/or supervision For the purpose of enabling or assisting the body or organisation to discharge its assessment function
Professional body responsible for setting standards and disciplining persons who fail to meet those standards (e.g., professional accounting bodies and law societies) To enable or assist the body to discharge its functions in relation to a person who fails, or is alleged to have failed, to meet the body’s set standards
The European Banking Authority
The European Insurance and Occupational Pensions Authority
The European Securities and Markets Authority
The European Systemic Risk Board		 To assist these authorities in the exercise of any of their functions
A supervisor of a securities market To assist the supervisor in the exercise of any of its functions

Category 3: Oversight of NPO legislation

The NPO law provides us with statutory gateways that allow the disclosure of restricted information obtained while fulfilling our obligations under that law. It also permits us to publish information in the form of summaries or compilations, provided they are structured in a way that prevents identification of any individual.

In addition, Jersey customary law allows us to disclose restricted information where both the person from whom the information was obtained and, if different, the person to whom it relates, have given their consent.
There are also specific circumstances where we are legally required to disclose restricted information. These are outlined in section 7 below.

Table 3. Information gateways within NPO oversight legislation

Gateway to: Circumstances in which the gateway may be used:
Jersey’s Minister for External Relations

No restriction, but this law provides that the JFSC may, in particular use the gateway, if it is satisfied that the information is required:

  1. to investigate a suspected offence in or outside Jersey
  2. to institute criminal proceedings in or outside Jersey or
  3. in respect of any proceedings arising under this law
Attorney General (Chief Prosecutor)

No restriction, but this law provides that the JFSC may, in particular use the gateway, if it is satisfied that the information is required:

  1. to investigate a suspected offence in or outside Jersey
  2. to institute criminal proceedings in or outside Jersey
  3. in respect of any proceedings arising under this law
Jersey Charity Commissioner

No restriction, but this law provides that the JFSC may, in particular use the gateway, if it is satisfied that the information is required:

  1. to investigate a suspected offence in or outside Jersey
  2. to institute criminal proceedings in or outside Jersey
  3. in respect of any proceedings arising under this law
Jersey Gambling Commission

No restriction, but this law provides that the JFSC may, in particular use the gateway, if it is satisfied that the information is required:

  1. to investigate a suspected offence in or outside Jersey
  2. to institute criminal proceedings in or outside Jersey
  3. in respect of any proceedings arising under this law

Bodies that:

  1. exercise functions of a public nature in Jersey
  2. are concerned in the prevention, investigation, detection or prosecution of money laundering or the financing of terrorism

No restriction, but this law provides that the JFSC may, in particular use the gateway, if it is satisfied that the information is required:

  1. to investigate a suspected offence in or outside Jersey
  2. to institute criminal proceedings in or outside Jersey
  3. in respect of any proceedings arising under this law
An Overseas Supervisory Authority No restriction other than the JFSC must be satisfied that the information is to be used by the body solely in the exercise of its functions that are similar to the functions that the JFSC may exercise under this law
An international body whose functions include the assessment of Jersey’s compliance with international standards For the purpose of enabling the body to discharge its assessment function

Category 4: Companies legislation

The Companies Law provides us with a statutory gateway (see schedule below) that allows us to disclose an inspector’s report, which may contain restricted information, if the inspector was appointed under this law. The law also permits us to have such reports printed and published.

In addition, Jersey customary law allows us to disclose restricted information where both the person from whom the information was obtained and, if different, the person to whom it relates, have given their consent.
There are also specific circumstances where we are legally required to disclose restricted information. These are outlined in section 7 below.

Table 4. Information sharing gateways under the companies legislation

Gateway to: Circumstances in which the gateway may be used:
  1. Any member of the company or other body corporate which is the subject of the inspector’s report
  2. Any person whose conduct is referred to in the inspector’s report
  3. The auditors of the company or that body corporate
  4. The applicants for the investigation
  5. An Overseas Supervisory Authority
  6. Any person whose financial interests appear to the JFSC to be affected by the matters dealt with in the report, whether as a creditor of the company or as a body corporate, or otherwise
  7. A recognised professional body (as defined in the Companies Law)
  8. A professional oversight body (as defined in the Companies Law)
  9. The Jersey Registrar of Companies

The passing of a report which has been produced by an inspector appointed by the JFSC to investigate the affairs of a company incorporated under the provisions of this law.

Gateways (vii), (viii) and (ix) apply only where the report relates to the affairs of a market traded company (as defined in the Companies Law).

7    Our obligations to disclose restricted information

Under Jersey law we are legally obliged to make disclosures in the following circumstances:

7.1    Statutory powers to compel information

The Attorney General, Bailiff, or Royal Court may exercise statutory powers to compel the JFSC to disclose information for the purpose of investigating suspected offences or supporting criminal proceedings to which the JFSC is not a party. Relevant legislation includes:

Investigation of Fraud (Jersey) Law 1991 [Attorney General]

Criminal Justice (International Co-operation) (Jersey) Law 2001 [Attorney General]

Proceeds of Crime (Jersey) Law 1999 [Bailiff]

Terrorism (Jersey) Law 2002 [Bailiff]

Evidence (Proceedings in Other Jurisdictions) (Jersey) Order 1983 [Royal Court]

7.2    Ministerial powers under the Sanctions and Asset-Freezing Law

Under the Sanctions and Asset-Freezing (Jersey) Law 2019, the Minister for External Relations may compel the JFSC to provide information for the following purposes:

  • Determining the nature and control of assets held by designated persons
  • Assessing financial transactions involving designated persons
  • Making, varying, or revoking terrorism designations
  • Monitoring compliance or detecting evasion of the Law
  • Obtaining evidence of offences under the Law

7.3    Our duty to disclose to the Minister for external relations

We must disclose information to the Minister for External Relations as soon as practicable when it believes the information will assist the Minister in performing duties under the Sanctions and Asset-Freezing (Jersey) Law 2019 or in investigating or prosecuting offences under that Law.

7.4    Suspicion of money laundering or terrorist/proliferation financing

We are obligated to report information suggesting involvement in money laundering, terrorist financing, or proliferation financing under the following provisions:

  • Article 23 of the Money Laundering (Jersey) Order 2008
  • Articles 1(1) and 37(11) of the Proceeds of Crime (Jersey) Law 1999

7.5    Suspicion of offences under Terrorism or Proceeds of Crime Laws

Where we suspect that a person has committed offences under Articles 15, 16, or 16A of the Terrorism (Jersey) Law 2002 (as referenced in Article 19), or is engaged in money laundering under Article 34A of the Proceeds of Crime (Jersey) Law 1999, it must report such suspicions to the appropriate authorities.

7.6    Data subject rights and exemptions under the Data Protection Law

Individuals have the right to access personal data held by the JFSC under Article 28 of the Data Protection (Jersey) Law 2018. However, this right may be restricted where:

  • disclosure would prejudice the JFSC’s regulatory functions (Article 48)
  • data are processed for crime prevention or investigation (Article 45)

Note that certain gateways require the JFSC to be satisfied, before disclosing any information, that the recipient will comply with, any conditions to which the JFSC may, attach to the disclosure of the information