U.K. FCA Considers Publishing More Details on Investigations

The U.K.’s Financial Conduct Authority is usually tight-lipped about the people and companies it’s investigating, at least at an early stage. That may now start to change, after the watchdog agreed Wednesday to consider making some details of its probes public.

The regulator asked the type of information people wanted, and has been lobbied to either name all the firms it’s looking into, or to stop anonymizing its warning notices, according to a statement from the agency Wednesday. Warning notice statements set out misconduct allegations, and don’t always include the names of their targets.

Any shift towards more transparency would come just as the press feels the chilling effect of a legal victory for pop icon Cliff Richard against the BBC last year. The broadcaster invaded Richard’s privacy in its coverage of a police raid on his home, a London court found, in a ruling that highlighted the new limits the British media face when reporting early-stage police investigations. That ruling was promptly used by attorneys in a separate case to try to lock the press out of a three-day hearing involving mysterious millionaires.

“The main concern would be that the very fact an investigation is underway could irreparably harm a company’s reputation,” even if it’s later vindicated, said Terence Dickens, a financial services lawyer at Foot Anstey. Members of the public may think “there’s no smoke without fire,” he said.

The FCA will consider whether to publish more information online as part of an upcoming review, without specifying what kind of information it’ll consider making public and in what circumstances. Currently there are only “limited circumstances” where the regulator discloses that it’s looking into a firm, “because opening an investigation does not mean that someone has committed misconduct,” it said. To be sure, publishing more information about investigations wouldn’t necessarily mean publishing the identity of the people and companies it’s looking into.

An FCA spokeswoman declined to comment.

Privacy Rights

In the wake of the Richard case, which ended with prosecutors deciding he wouldn’t face charges, it’d be difficult for the regulator to publish names of individuals it’s investigating because that may breach their right to privacy, said Nicola Cain, a media lawyer at RPC in London. But that wouldn’t stop it from naming companies, because privacy is a human right that doesn’t apply to organizations.

The regulator may decide publishing the names of more firms under investigation is a good idea because it’d deter other companies from the same kind of wrongdoing, she said, though the regulator would have to send a clear message to the public that opening an investigation doesn’t necessarily mean any wrongdoing has taken place.

Bloomberg | April 24, 2019

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