{"id":673,"date":"2024-10-24T16:13:50","date_gmt":"2024-10-24T16:13:50","guid":{"rendered":"https:\/\/fabian-sanchez.com\/?p=673"},"modified":"2026-05-13T18:00:54","modified_gmt":"2026-05-13T18:00:54","slug":"the-inhumane-side-of-geo-political-sanctions-as-western-union-exits-cuba-2-2-2-2-2-2-2-2-2","status":"publish","type":"post","link":"https:\/\/fabian-sanchez.com\/?p=673","title":{"rendered":"Beneficial Ownership! Public Registry and Privacy Rights"},"content":{"rendered":"\t\t
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\"\"Beneficial Ownership! Public Registry and Privacy Rights<\/em><\/strong><\/p>

Jamaica comes under close watch as its February 2023, date looms to address its strategic deficiencies in its regime to combat money laundering. The country is among twenty-six jurisdictions named in the Financial Action Task Force (FATF) October 2022 publication of high-risked, and other monitored jurisdictions for money laundering.<\/p>

The FATF\u2019s assessment of Jamaica, records three areas which require improvements. Among them is Recommendation 24 of the FATF\u2019s 40 recommendations aimed at combating money Laundering. Recommendation 24 addresses beneficial ownership information for legal persons and requires the implementation of a public registry of accurate and up-to-date basic beneficial ownership information, available on a timely basis to competent authorities. Failure to adequately satisfy the FATF of our efforts to address these areas could have negative outcomes for Jamaica.<\/p>

In this missive, we explore beneficial ownership information and its availability to the public, considering the recent ruling by the European Court of Justice (ECJ) on November 22, 2022, which ruled on the infringement of guaranteed rights by this FAFT requirement.<\/p>

FATF Requirement\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 <\/em><\/strong><\/p>

Recommendation 24 of the FATF recommendation on combating money laundering speaks to the Transparency and Beneficial Ownership of Legal Persons. In its interpretive notes on this recommendation, the FATF indicates that \u201ccompetent authorities should be able to obtain, or have access in a timely fashion to adequate, accurate and current information on the beneficial ownership and control of companies and other legal persons that are created in the country<\/em>.\u201d It goes on to prescribe four minimum requirements by which this is to be accomplished. Among them is the requirement to make the information publicly available.<\/p>

Beneficial Ownership<\/strong><\/p>

Beneficial Ownership simply put, seeks to identify the legal person(s) who controls or has controlling interest in an established enterprise, or otherwise who owns the enterprise and calls the shots. As a mechanism to fight money laundering, it is important that such information is known and available to law enforcement. Importantly, financial institutions often carry the burden of unearthing the beneficial ownership of businesses as part of their due diligence requirements. This becomes quite challenging when the beneficial ownership is shrouded in secrecy through offshore registration using Special Purpose Vehicles (SPVs) and Trust arrangements and often through several obscure legal entities.<\/p>

Public Registry and Rights \u2013 Jamaica<\/em><\/strong><\/p>

Charter of Fundamental Rights and Freedoms<\/em><\/strong><\/p>

The Charter of Fundamental Rights and Freedoms (Constitutional Amendment) Act, 2011 in Chapter III Section 13(3), outlines the rights guaranteed to Jamaicans under the Constitution. Privacy rights, as contained in this section, appears at section 13(3)(j)(ii) and (iii). Specifically, they indicate \u201cthe right of everyone to:<\/em><\/p>

(ii) respect for and protection of private and family life, and privacy of the home; and <\/em><\/p>

(iii) protection of privacy of other property and of communication.\u201d<\/em><\/p>

Data Protection Act<\/em><\/strong><\/p>

The Data Protection Act, 2020 under Part II addresses the rights of data subjects and others. Under section 6(2)(a) of the Act, \u201can individual is entitled to be informed by the data controller, free of charge, whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller.\u201d Further, in 6(2)(b), once personal data is being processed, the data subject is entitled to \u201ca description of the personal data of which the individual is the data subject, the purpose for which the personal data are being or are to be processed and the recipients or classes of recipients to whom they are, or may be, disclosed<\/em>.\u201d<\/p>

Takeaways from the ECJ\u2019s Ruling in view of Privacy Rights and the Processing of Personal Data, making the Jamaican connection<\/em><\/strong><\/p>

In paragraph 35 of its ruling, the ECJ acknowledged that \u201cArticle 7 of the charter guarantees everyone the right to respect for his or her private and family life, home and communications, while Article 8(1) of the Charter expressly confers on everyone the right to protection of personal data concerning him or her<\/em>.\u201d We note the similarity of the wording of Article 8 and that of section 13(3)(j) under the Jamaican Charter of Fundamental Rights and Freedoms. The ECJ in its ruling made several notable judgements as it concerns privacy right and beneficial ownership public registries. In paragraph 38 it ruled that access to any member of the public to personal data affects the fundamentals right guaranteed under Article 7. At paragraph 39, it ruled that making personal data available to third parties interferes with fundamental rights. It went on in paragraph 44 to rule that the requirement for general public access to information on beneficial ownership constitutes a serious interference with fundamental rights enshrined in Articles 7 and 8 of the Charter. \u00a0<\/p>

Conclusions<\/em><\/strong><\/p>

As Jamaica rushes to address its strategic deficiencies, and specifically recommendation 24 on Beneficial Ownership, prudence dictates that we take note of this ruling from the ECJ given the close similarity of wording in Article 7 and 8 when compared with section 13(3)(j) in our Charter of Rights. While not authoritative given Jamaica\u2019s common law jurisprudence, it would be fool hardy to embark on a trajectory which could later be challenged constitutionally, as we seek to comply with recommendation 24.<\/p>

The FATF in October 2022 issued for public consultation, amendments to Recommendation 24. The amendments are aimed at \u201cstrengthening the international standards on beneficial ownership, to better prevent and deter the misuse of legal persons\u201d, and to respond to outcomes of the FATF\u2019s mutual evaluation process. Countries will now be expected to adopt a multipronged approach in collecting beneficial ownership information. The revision will also now require countries to adopt a risk-based approach in assessing their exposure to legal persons within the jurisdiction, and externally where there are \u201csufficient links with their country”. Of note in perusing the revised guidance, the FATF may be amenable to publicly available beneficial ownership registries not being an absolute requirement going forward. At paragraph 10.1 which addresses \u201cExample features \u2013 Public authority or body holding beneficial ownership information\u201d, it records at \u201c(xii) Basic information on the company is publicly available; some or all BO information could also be made publicly available or be made available to FIs and DNFBPs at a minimum.\u201d<\/p>

Fabian E. Sanchez, JP<\/em><\/strong><\/p>

CIPM, Intl. Dip. AML, CAMS, CIRM, MBA, BBA –\u00a0<\/em>fsanchez@fabian-sanchez.com\u00a0<\/em><\/strong><\/a>\u00a0<\/i>LinkedIn: Fabian E. Sanchez, JP | LinkedIn<\/a><\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t","protected":false},"excerpt":{"rendered":"

Beneficial Ownership! Public Registry and Privacy Rights Jamaica comes under close watch as its February 2023, date looms to address its strategic deficiencies in its regime to combat money laundering. The country is among twenty-six jurisdictions named in the Financial Action Task Force (FATF) October 2022 publication of high-risked, and other monitored jurisdictions for money […]<\/p>\n","protected":false},"author":1,"featured_media":1275,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,1],"tags":[],"class_list":["post-673","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-amlfundamentals","category-uncategorized"],"jetpack_featured_media_url":"https:\/\/fabian-sanchez.com\/wp-content\/uploads\/2026\/05\/BO.jpg","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/fabian-sanchez.com\/index.php?rest_route=\/wp\/v2\/posts\/673","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fabian-sanchez.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fabian-sanchez.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fabian-sanchez.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/fabian-sanchez.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=673"}],"version-history":[{"count":7,"href":"https:\/\/fabian-sanchez.com\/index.php?rest_route=\/wp\/v2\/posts\/673\/revisions"}],"predecessor-version":[{"id":1278,"href":"https:\/\/fabian-sanchez.com\/index.php?rest_route=\/wp\/v2\/posts\/673\/revisions\/1278"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/fabian-sanchez.com\/index.php?rest_route=\/wp\/v2\/media\/1275"}],"wp:attachment":[{"href":"https:\/\/fabian-sanchez.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=673"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fabian-sanchez.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=673"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fabian-sanchez.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=673"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}