We now have the definitive image of Just Stop Oil. As the England wicketkeeper, Jonny Bairstow, carried protestor Daniel Knorr off the ground at Lords, like a bored parent removing a toddler from a soft play, young Daniel raised his fist to the crowd in a gesture of triumph. Yes, in that moment of maximum futility, not to mention humiliation, the Just Stop Oil protestor thought he’d scored a popular victory. I won’t labour the point, but I will say that I’d buy the t-shirt if anyone cares to produce one.
We should not, however, allow ourselves to become too distracted by the slapstick sabotage of Just Stop Oil. Because there’s a much more serious and destructive campaign of sabotage being conducted in Britain right now. This involves, among other things, letter writing campaigns of the type we associate with late-stage totalitarian regimes.
The difference here is that the letters are being written to banks, payment companies and other corporations, not the secret police. The concept is the same though. They denounce their ideological enemies to people with the power to make their lives difficult, if not intolerable. And the surprise, for me at least, is how readily our banks and payment companies have taken on the secret police role.
In response to the treatment of Nigel Farage by Coutts, the Government is reportedly planning to table legislation to prevent banks from denying service to someone on political grounds. The obvious question is whether the Government should also be looking at the letter writers themselves?
It would be natural to baulk at this. It feels heavy handed and illiberal. And it would be far better if the banks and payment companies realised that this is commercially counterproductive, ethically wrong, and sometimes unlawful. On closer inspection, however, a government response might require little more than codifying and updating existing legal principles that are already backed by sound public policy.
For example, there is, in most common law countries, a tort known as intentional interference with a contract, or inducing a breach of contract, or similar. This involves a person intentionally causing someone to breach their contract with a third party. I’ll spare you the detailed analysis of whether the technical elements of the tort apply to the examples we’ve seen, not least because I’m not qualified to provide it. I will, however, offer a few observations.
I’ve seen a lot of bank and payment company terms of use, from both sides of the professional and commercial fence. I have never, however, seen any that include, as grounds for closing an account, “expressing an opinion that conflicts with the views of the bank’s social media team, the University of Sussex Student Union, or Stonewall”. To close an account by falsely accusing the local vicar of breaching some other provision, such as a prohibition against hate speech, would put the bank itself in breach. Pressuring a bank or payment company to do so does, therefore, look something like the tort.
There are, of course, ways for a bank or payment company to exit a client without breaching its own terms of use. Financial services firms must retain some discretion regarding whether they offer, or continue to offer, regulated products to each customer. This is to enable them to ensure, among other things, that their products are suitable and safe for each customer, that they deploy capital and balance sheet in accordance with sound prudential principles, and that they minimise the risk of money-laundering, terrorist financing and other criminality. This may make any examination of a bank’s true motives for exiting a client difficult.
I’m also reminded of the terrible accident that happened at PayPal last year. It amended its terms of use so that it could levy fines against customers who breached its Acceptable Use Policy. The poor folk at PayPal were mortified when this came to light because, as they explained, it was an accident. We’ve all been there. You’ve instructed someone in your legal team to draft a clause guaranteeing procedural fairness to your customers, but they’re notoriously poor typists. They look like the Swedish chef from the muppets, swinging their arms wildly and hitting all the wrong keys. Still worse, the text doesn’t come out as gobbledygook, it comes out as a perfectly formed legal clause. It then turns out that the person responsible for approving the clause has been ignoring those reminder emails from their optometrist for months, so they miss-read it. Such accidents could happen at any bank or payment company, resulting in far more lethal and targeted terms of use.
There’s also the question of whether the letters constitute inducement and so on, but this could get very boring very quickly. The main point is that the common law has long recognised that it is a wrong, actionable at law, to deliberately sabotage someone else’s contractual relationship. And that is precisely what these campaigners are attempting to do.
This is not all though. There is a constellation of existing legislation and other common law principles that, taken together, provide a reasonably clear public policy consensus on this issue.
This includes the powerfully effective U.K. GDPR. One reason I’ve been able to write this piece is that I have so much more time now that my inbox is not full of spam and my phone is no longer ringing about the car accident I never had. One set of principles established by the U.K. GDPR, in its beautiful prose styling, is that a “data controller” (that’s the bank) must disclose to the “data subject” (that’s you) the way it collects personal information and the purpose for which it collects that information. The data controller is prevented from using the information for any other, undisclosed, purpose.
I don’t know about you, but I’ve never seen a bank privacy notice that says: “We may collect information about your personal beliefs from vindictive strangers who, acting in bad faith and with the sole intention of harming you, write letters to us denouncing you. We will retain this information for the purpose of monitoring your personal beliefs. We may use this information to deny you service if we, or the campaign group that we pay to tell us what to think, disagrees with your beliefs.” Although, as mentioned above, accidents do happen.
Again, I won’t attempt an analysis of whether the banks and payment companies have breached the U.K. GDPR in any specific case, but you get the point. It is accepted public policy that businesses should not unnecessarily collect, retain or, most importantly, use personal information about you. According to the U.K. GDPR, banks should screw these letters up and throw them in the bin. So it seems a small step to prohibit the writing of the letters in the first place. In fact, what is the point of privacy legislation if it doesn’t deal with unhappy people who self-soothe by keeping a file on your personal beliefs and reporting them to your bank, dentist, and local Waitrose?
Then there’s the entire common law of defamation. And the FCA Handbook, that places a regulatory obligation on banks to treat customers fairly. And the Equality Act 2010 which, apparently, prevents businesses like banks from discriminating against people because of their ‘protected’ religious or philosophical beliefs. And, more tangentially, competition law, which deals with boycotts and other abusive practices intended to disrupt commercial relationships and markets. All of these have something to say, directly or indirectly, about the issue.
Would it be a stretch to draw from this body of law a general principle that it is wrong, and against public policy, to write letters to businesses about the personal beliefs of their customers, with or without a threat to harm that business by organising a boycott or a negative PR campaign, for the purpose of disrupting that business relationship or harming those customers?
All of this is without recourse to those twin cousins of the common law, common sense and common decency, who would surely object to these letter writing campaigns on principle. Common sense might also suggest, however, that before we consider legislation to prevent individuals from writing letters, no matter how objectionable the individual or the letter may be, it is better to wait and see whether our banks and payment companies can be convinced to simply ignore them. As of course they should.
Adrian Brown is a former lawyer who works in payments and foreign exchange, with experience across both the banking and financial technology sectors.
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