Consequences of Disclosing Banking Secrets
The law provides that it is a crime to divulge bank secrets or collect them illegally. Responsibility for the deliberate distribution of confidential information is established by the Criminal Code of the Russian Federation. Article 183 "Illegal receipt and disclosure of information constituting commercial, tax or banking secrets" provides for rather severe measures. In addition to it, civil or administrative liability may be applied to the violator.
Bank secrecy concept
Banking and banking legislation understands banking secrecy as information about accounts and deposits of legal entities and individuals. But this is a strict definition; in practice, bank secrecy also includes information of a different kind, including:
- personal data of clients and the bank;
- conditions of specific contracts;
- personal bank card numbers, pin codes and similar information;
- history of negotiations, cooperation;
- history of relations with correspondent banks;
- information characterizing the process of carrying out activities by the bank itself.
At the same time, such information and documents will not be directly attributed to the concept of banking secrecy, such as:
- constituent documents of companies, certificates confirming their registration as a legal entity;
- open data of financial statements (as opposed to financial, information contained in business plans can be secret);
- tax reporting;
- information about the structure of the company;
- information on the payment of taxes and other obligatory payments to the budget.
The subject of protection of this information will be not only banks, but also microfinance organizations, and the client only needs to contact the bank once and fill out the borrower's questionnaire so that the information provided falls under the banking secrecy regime. All this information, although it does not have a “secret” stamp, when disseminating it can harm the rights and interests of many persons protected by law, therefore the legislator made sure that the consequences of disclosing bank secrets were as serious as possible for offenders. It should be borne in mind that information constituting bank secrecy, in cases determined by law, may be disclosed to law enforcement, tax and some other government agencies. Banks that value their customers carefully monitor such requests and fulfill them only when they fully comply with the law, which is not always the case. If an illegal request is fulfilled, the bank will at least be required to compensate for moral damage for disclosing information in court.
Differentiation of the concepts of commercial and banking secrets
The mode of storing confidential information that falls under the concept of commercial and banking secrets is different. If in the first case the enterprise itself establishes a list of information related to it, the conditions for its storage and disclosure to third parties, then in the second case the norms of the law and the requirements of the federal banking regulator - the Central Bank of the Russian Federation - apply. The owner of bank secrets will be only the bank's client, and the commercial one belongs to the owners of the organization. A specific feature of the banking secrecy regime will be that the law does not determine how information is transferred between various employees of a credit institution. It is these transactions that pose the greatest risk of information leakage.
But in some cases, despite all the contradictions between the protection regimes, the responsibility for disclosure may coincide.
Liability for Disclosing Banking Secrets
The law establishes four types of liability for violation of the confidentiality regime:
- civil law;
- within the framework of labor legislation;
Most often, for the disclosure of banking and commercial secrets comes civil liability.
Civil liability measures for disclosing bank secrets
The main feature of responsibility established by the Civil Code is its material form. The guilty person must be ready to fully compensate the victim's losses, including not only the actual damage incurred, but also the lost benefit. The plaintiff may, at his option, determine the defendant guilty of causing him damage. They may be:
- credit institution employee;
- the bank itself as a legal entity;
- TSB RF;
- Deposit Insurance Agency;
- any other organizations that have been entrusted with banking secrecy as a result of their statutory or other activities on the basis of an agreement or normative act (audit, insurance).
The court will apply the norms of Article 857 of the Civil Code of the Russian Federation, according to which losses are subject to compensation in full, and at the request of a party, it can apply the norms of Art. 151-152 of the Civil Code on compensation for moral damage. The same liability can be incurred for the disclosure of commercial secrets. Interestingly, it is not always possible to apply these measures of responsibility when disclosing information constituting bank secrets to credit bureaus and collection agencies.
Responsibility under labor law
A bank employee who has shown negligence or has maliciously disclosed information that constitutes bank secrecy must be prepared for disciplinary action against him. Most often, directly in the employment contracts of specialists of credit organizations and responsible officials, there is such a basis for terminating labor relations, as the disclosure of bank secrets.
In addition, if the guilty actions of the employee became the basis for recovering the client's losses from the bank, the credit institution may subsequently shift the guilty to compensation for these losses.
There is a theoretical possibility of bringing the person who disclosed the information constituting a bank secret to administrative responsibility under the provisions of Art. 13.14 of the Administrative Code. If the measures of criminal liability are inapplicable for one reason or another, such a person may be punished administratively. The fine for disclosing information protected by law is now only 5 thousand rubles. In practice, prosecution requires the expression of the will of the victim, filing an application with law enforcement agencies to initiate administrative proceedings. It is not easy, and the fine is too low for this liability to work.
The Criminal Code of the Russian Federation contains a special article devoted to actions with bank secrets that are illegal. Collecting such information by any illegal means can lead to a fine of up to 500 thousand rubles or a punishment of up to 2 years in prison. Their disclosure to third parties or their use for their own purposes will increase the measures of financial responsibility up to one million, while freedom can be lost for up to 3 years. If the perpetrators inflicted heavy damage on the victim or led to grave consequences, they can lead to 5 or 7 years in prison.
The article, despite all its severity, is extremely rarely applied in practice. This is due to the reluctance of credit institutions to wash dirty linen on the street, customer claims are more often satisfied by mutual agreement. In addition, banks have significantly increased the level of information protection, and it is now difficult to gain access to protected information or disclose it. Also, banks usually transfer information to third parties in compliance with the conditions for providing the client's consent to the processing of personal data, which reduces the risk of bringing them to responsibility.
Legal disclosure of banking secrecy
The legislation provides for situations in which information constituting a bank secret can be lawfully transferred to third parties. In some cases, this requires the written consent of the client. Without it, information can be transmitted:
- at the credit bureau;
- in the form of a response to legitimate requests from bailiffs and other state bodies. Interestingly, if a search or seizure takes place in the bank itself, the requirement to maintain secrecy practically does not apply;
- The Central Bank, along with other reporting, while the Central Bank of the Russian Federation bears independent responsibility for its safety;
- tax authorities and Rosfinmonitoring in cases strictly defined by law.
It can be concluded that the most serious option for applying the consequences of disclosing bank secrets will be civil law. If the plaintiff succeeds in proving the existence of real damage to the court, it will be recovered from the credit institution in full.
Cases of application of Article 183 of the Criminal Code of the Russian Federation are extremely rare, and they often relate to commercial secrets. Companies are not associated with difficulties with increased risks to business reputation, unlike banks, therefore they initiate criminal cases much more often, holding employees accountable even with small amounts of losses incurred.