The coming in force of the General Data Protection Regulation (EU) 2016/679 (‘GDPR’) in May 2018 dramatically changed the way in which personal data is viewed, considered and ultimately processed by controllers and processors in a variety of fields and industries. This has also resulted in increased awareness in the judicial and legal spheres, and the recent application by the Maltese courts of the ‘right to be forgotten’ in the context of the publication of court judgments on its online portal.

The practice of obtaining evidence through potentially dubious means such as secret recordings, microphones or hidden cameras, is widespread and prevalent, with parties to civil cases doing their utmost to bring their ‘best evidence’ to the court’s attention. But what happens when evidence presented by the parties is obtained illicitly and in potential breach of data protection principles and grounds as expounded in the GDPR?

The recording of a person through a hidden call or video recording without his knowledge and information, constitutes “processing of personal data” which is arguably in breach of Articles 5 (principles) and 6 (grounds) of the GDPR and therefore potentially illegal in terms of the same law. On the basis of this potential ‘illegality’ – can the courts, and should the courts accept such illegally obtained evidence as evidence to be considered in the court’s deliberations?

The practice of obtaining evidence through potentially dubious means such as secret recordings, microphones or hidden cameras is widespread and prevalent

Or do the Maltese courts adopt the ‘fruit of the forbidden tree’ doctrine, adopted in US jurisprudence which renders such evidence inadmissible? If so – can the counter-party in the same proceedings object to the presentation of such evidence and ask for the ‘sfilz’ and removal of the contested documentation from the court file?

This issue was recently considered and decided in a decree of the Court of Magistrates (Civil Jurisdiction) in the case Cutajar v Caruana decided on February 14, 2019, where one of the aggrieved parties filed an application to the court requesting the exclusion from evidence of a phone call recording, recorded without the defendant’s knowledge or consent. In the application, the defendant claimed that the recording was in breach of the GDPR and of his rights to privacy, and that the court should not tolerate or sanction such behaviour by allowing illegally obtained evidence.

In its decree, the Court of Magistrates accepted the fact that the recording of a voice call, constituted ‘processing of personal data’ in terms of Maltese and EU data protection law, but held that it was not within its competence or remit to decide about the legality or illegality of such data processing, since such competence vested with the Information and Data Protection Commission (IDPC) which had not given a decision on the matter.

The Court also quoted a Criminal Court judgment in the names Republika ta’ Malta v Meinrad Calleja where on a similar request the court had noted that the ‘Exclusionary Rule’ under US law was alien to the Maltese legal system and had not developed in the same way in Malta. It continued to state that the Maltese position should follow that established in common law jurisprudence which provides that “evidence obtained unlawfully, improperly or unfairly is admissible as a matter of law”.

The court also noted that neither the Data Protection Act, Chapter 440 of the Laws of Malta (pre-GDPR), nor the Data Protection Act, Chapter 586 of the Laws of Malta (post-GDPR) actually create or provide for an “exclusionary rule” in the case of ‘illegally obtained’ evidence. One may arguably claim the inverse, in that data protection law seemingly condones the processing of personal data when this is necessary for establishing, exercising or defending legal claims.

In Cutajar v Caruana the court also quoted case law of the ECHR which held that Article 6 of the European Convention on Human Rights does not lay down rules on the admissibility of evidence and therefore ‘exclusionary rules’ fall within the remit of the national courts. On this note the ECHR also held that even if illegally obtained evidence is presented, this did not automatically mean that proceedings were in breach of the Article 6 ‘right to a fair trial’.

For the court, the key consideration is not how the evidence was first obtained, but whether the evidence is relevant to the matter being disputed and whether the counter-party is allowed the opportunity to cross-examine that evidence in accordance with procedural law.

On the basis of these considerations, the court rejected the request for the removal of this evidence.

Thomas Bugeja is an Associate at Fenech & Fenech Advocates.

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