A banker's duty of secrecy in Malaysia is statutory as it is clearly provided under the Financial Services Act 2013 ("FSA"). This article will only focus and discuss the relevant provisions of the FSA. It will not include any analysis on the Islamic Financial Institution Act 2013.
A banker owes a duty of secrecy to its customers at all times, including a duty to keep information concerning its customers' affairs confidential. This duty is also contractual in nature and is to be implied by a banker and customer relationship.
Section 133(1) of the FSA stipulates that no person who has access to any document or information relating to the affairs or account of any customer of a financial institution, including the financial institution or any person who is or has been a director, officer or agent of the financial institution, shall disclose to another person any document or information relating to affairs or account of any customer of the financial institution.
Tournier v National Provincial and Union Bank of England is a landmark case which laid down and defined the scope of a banker's duty of secrecy and confidentiality to its customer. In this case, the Bank had disclosed to the Plaintiff's employer about the Plaintiff's information which he had obtained from the drawer of a cheque made in favour of the Plaintiff. After receiving the information from the Bank, the Plaintiff's employer did not renew the Plaintiff's contract of employment. The Plaintiff then commenced an action for breach of confidentiality.
Their Lordships held that the right of a customer to have his affairs kept confidential is a legal right, which is not absolute but qualified. It was further held that the duty of secrecy is not only confined to the actual state of the customer's account but it also extends to information derived from the account itself.
In other words, a banker's duty to maintain secrecy and confidence not only encompasses information and facts that he learns from the state of the customer's account but includes and extends to all information gained from other sources than the customer's actual account by virtue of the banking relationship. The same principles were enunciated in our local case of Wong Yeng Mun v CIMB Bank Berhad.
The next concern is whether an ex-employee of a bank is also bound by the duty of secrecy. The answer is simply, yes. According to section 133(1) which is read together with section 133(3) of the FSA, the duty of confidentiality...