A Potential Penrose Triangle: Transparency, Privacy, and the Fight Against Corruption
The Penrose Triangle is an impossible figure (or impossible object or undecidable figure): it depicts an object which could not possibly exist.
For most, if not all, the fight against corruption requires international cooperation and transparency, but at the same time, the right to privacy or private life is enshrined in the Universal Declaration of Human Rights (Article 12), the European Convention of Human Rights (Article 8) and the European Charter of Fundamental Rights (Article 7).
This tension between two equally important public policies has taken several forms and increasingly puts not only corporations but also governments in a dilemma.
The OECD, in its 2021 Recommendation on Foreign Bribery, set out a clear view on this by asking member countries to ensure that compliance with data protection rules and laws that prohibit transmission of economic or commercial information does not unduly impede:
i) effective international co-operation in investigations and prosecutions of foreign bribery and related offences, in accordance with Articles 9 and 10 of the OECD Anti Bribery Convention; and
ii) the effectiveness of anti-corruption internal controls, ethics, and compliance programmes or measures, including internal reporting mechanisms, due diligence, and internal investigation processes
However, an OECD Recommendation is not legally binding, and courts are often required to intervene. This is particularly the case in the European Union context in light of the very strong privacy and data protection legal frameworks. In an emblematic case still ongoing in front of the European Court of Justice, this tension even led to litigation between Europol and the European Data Protection Supervisor (EDPS).
Stronger United States Department of Justice policies on issues such as the preservation of “ephemeral messages” may indeed put European companies in a sort of catch 22 situation. The U.S. DOJ recognizes that there may be foreign data and information protection laws that prohibit the company from disclosing documents that may be relevant to the investigation but basically put the burden on the non-U.S. company to demonstrate it is not using national and/or European laws as a shield to withhold relevant information.
The bottom line is this – faced with confusing and even somewhat conflicting requirements, companies would be expected to find a legal way to “navigate” and to be able to preserve and produce, as necessary, key documents while respecting other applicable laws.
Is this a Penrose Triangle? It may be time to rely on a famous quote from Audrey Hepburn “Nothing is impossible. The word itself says I’m possible”.
International Lawyer, Former Director for Legal Affairs, OECD