Barclays Bank is about to slip into a critical legal showdown after one of its customers has instructed her lawyers to commence legal proceedings to “protect her rights over name and image.”
It all started when, in 2015, Berna Mutamba obtained a loan from a branch of Barclays Bank in Mukono. (Amount acquired has not been disclosed.)
When time for paying off the loan reached, Mutamba failed, according to her lawyer, Francis Harimwomugasho, who works with Newmark Advocates.
Consequently, Barclays Bank through their lawyers, Ligomac Advocates published Berna Mutamba’s image in the New Vision issue of April 5, 2017, which according to Harimwomugasho’s intention to sue letter, reflected a disregard of her right to privacy.
“In fragrant disregard of her right to privacy, name and image rights, you published her image through your accomplices the New Vision on the headed paper of your external lawyers, Ligomac Advocates on the 5th of April 2017 together with a number of other people you claim to be looking for,” reads the letter in part.
Mutamba, who is “a renowned advocate” — according to Harimwomugasho, had not permit the bank to “use her photograph for any other purpose or any part of her data.”
The letter also states that despite Mutamba having a guarantee and her address being known by the bank, none of the two were “utilised to trace our client when needed.”
According to the letter, Mutamba’s line of work depends “largely on her image and reputation” and because of the action taken by Barclays, “her clients no longer trust her and her hitherto promising career in legal practice was ruined by your negligent and unreasonable act with impunity.”
In light of the aforementioned, Berna Mutamba, her lawyer says, is seeking a compensation in general damage to the tune of Shs1 billion for a “blossoming career ruin”, Shs500 million as exemplary damages to set a precedent to other financial institutions “not to breach customers’ privacy by misusing personal data obtained by the bank from unsuspecting customers.”
Legal costs of the suit have been rated at 10% of the above cost, which brings the total amount to approximately Shs1.7 billion.
Parliament has not yet passed a specific law on Data Protection and Privacy and a specific law on Consumer Protection.
However, Article 27 of the Ugandan Constitution guarantees the right to protection from unauthorised disclosure of personal identity data, which includes the right to privacy of personal photographs.
The Bank of Uganda Consumer Protection Guidelines 2011 also compels Banks to act fairly and reasonably in their dealings with Customers and, in particular, Banks are prohibited from engaging in aggressive, intimidating and humiliating practices.
Under these guidelines, banks can only disclose confidential consumer information if they are compelled by law, in the public interest or with the express consent of the consumer, according to Fred Muwema, a managing partner in Muwema & Co. Advocates.
Says Muwema in a recent Facebook post: There is no law in Uganda which authorises a bank to advertise the identity photograph of a defaulting customer as a means of recovering a debt.
In the same post, Muwema argues that exposing a loan defaulter to public shame discourages them from doing business to meet their loan obligations.
Additionally, he maintains that “rather than reform and pay up, some of these defaulters may be hardened by the shame and deliberately refuse to pay.”
In the end, he advises, the practice of advertising identity photographs of loan defaulters may not be the best practice.
Computer Misuse Law
In the intention to sue notice, Harimwomugasho also revealed that private criminal prosecution proceedings will also be taken out against the directors of Barclays Bank under the computer misuse laws of Uganda since, he says, the client’s data was electronically captured.
Section 18 of the Computer Misuse Act states: “Except for the purposes of this Act or for any prosecution for an offence under any written law or in accordance with an order of court, a person who has access to any electronic data, record, book, register, correspondence, information, document or any other material, shall not disclose to any other person or use for any other purpose other than that for which he or she obtained access.”
It goes on: “A person who contravenes subsection (1) [above] commits an offence and is liable on conviction to a fine not exceeding two hundred and forty currency points or imprisonment not exceeding ten years or both.”
The notice, according to Harimwomugasho, also serves as a request to the Supervision Department Bank of Uganda to call to order Barclays Bank to “restrain them from continuous fragrant” breach of privacy and image rights.
“Appropriate administrative penalties should be visited on Barclays bank to serve as an example to other financial institutions,” says the notice.
The development comes amidst increased exposure of loan defaulters in media outlets by banks in Uganda.
Francis Harimwomugasho says, with this lawsuit, “We want to set the law on privacy clear”.