Over the past months two major financial services regulations have come into force. These are the fourth money laundering directive (4AMLD) and the Second Payment Services Directive (PSD II). In May this year the EU General Data Protection Regulation will be added. Organizations within the scope of these need to undertake a considerable amount of work to identify obligations, manage conflicts, implement controls and reduce overlap.
The EU GDPR (General Data Protection Regulation), which becomes effective on May 25th, 2018, will affect organizations worldwide that hold or process personal data relating to people resident in the European Union. The definition of both personal data and processing under GDPR are very broad, and processing is only considered to be lawful if it meets a set of strict criteria. GDPR also gives the data subjects extended rights to access, correct and erase their personal data, as well as to withdraw consent to its use. The sanctions for non-compliance are very severe with penalties of up to 4% of annual worldwide turnover. Critically, the organization that collects the personal data, called the Data Controller, is responsible for both implementing and demonstrating compliance.
GDPR: Potential Conflicts?
GDPR emphasizes transparency and the rights of data subjects and this may lead to conflicts with the other directives.
4AMLD - EU Directive 2015/849 of the 20 May 2015 is often referred to as Fourth EU Anti-Money Laundering Directive (4AMLD). The purpose of the Directive is to remove any ambiguities in the previous legislation and to improve consistency of anti-money laundering (AML) and counter terrorist financing (CTF) rules across all EU Member States. This directive applies to a wide range of organizations not just to banks. These include: credit institutions, financial institutions, auditors, external accountants and tax advisors, estate agents, anyone trading in cash over EUR 10,000 and providers of gambling services.
In the UK this directive has been implemented through the “Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017”, which came into force on 26th June 2017. In this, the 44 pages of the EU Directive have become 120 pages of regulation.
Clearly, to counter money laundering and terrorist financing involves understanding the identities of the individuals performing transactions and exactly who owns the assets being held and transferred. This makes it necessary to obtain, use and store personal data. So, is there any conflict with GDPR?
One area where there may be some concern is in relation to Politically Exposed Persons (PEPs) and their known close associates. In the UK regulatory instrument, to decide whether a person is a known close associate 35 (15) an organization need only have regard to information which is in its possession, or to credible information which is publicly available.
The UK Information Commissioner made several comments on this area in the drafts of the regulations.
- Political party registers are a source of publicly available information on PEPs but is it not clear that party members are informed or understand that their information in these could be used in this way.
- A person could be denied access to financial products due to inaccurate publicly sourced data or misattributed publicly sourced data. Under GDPR a data subject has the right to know where information has been sourced from and to challenge its accuracy. A clearer definition of “credible information” is needed.
The regulation requires the creation and maintenance of various registers. Specifically, a register of the beneficial owners of trusts must include 45 (6) personal data. The unauthorized exposure of this data could potentially be very damaging to the individuals and it is subject to GDPR.
Payment Services Directive II: A Closer Look
PSD II - EU Directive 2015/2366 of 25 November 2015 is often referred to as Payment Services Directive II (PSDII). This directive amends and consolidates several existing directives and has as a key purpose to open the market for electronic payment services. Member States, including the UK, must implement the Directive into national law by 13 January 2018 and this has been achieved through the Payment Services Regulations 2017. Some aspects have been delegated to the European Banking Authority (EBA) and will not be effective until Q3, 2019.
PSD II introduces third parties into financial transactions and this can add to the privacy challenges as recognized by comments from the UK ICO on the UK Regulations mentioned above. Where an individual is scammed into making a transfer, or makes a payment using incorrect details for the payee, the banks often cite data privacy as a reason to refuse to provide the payer with the details of the actual recipient. Under Open Banking there is now an additional party involved in the transaction and this may make it even more difficult for the payer under these circumstances. However, in the UK Regulation 90:
- obliges the payment service provider to make reasonable efforts to recover the funds involved in the payment transaction; and
- If unable to recover the funds it must, on receipt of a written request, provide to the payer all available relevant information for the payer to claim repayment of the funds.
This leaves an element of uncertainty does “relevant information” include the personal details of the recipient? Clearly, if it does, under GDPR the payment service providers must make sure that they have obtained consent from their customers for the use of their data under these circumstances.
In conclusion – the EU directives and regulations usually state how they relate to each other. In the case of directives their implementation can add an extra degree of complexity. Furthermore, these regulations exist within legal frameworks and local case law. In principle there should be no conflicts however, organizations have often been ready to cite “privacy” as a reason for providing poor service.