Scholar, legal expert and former UN Special Rapporteur on the Right to Privacy professor Joe Cannataci outlines why he fears planned changes to the constitution are downright dangerous.

Cannataci will be co-hosting a national forum at the University of Malta on Monday, October 31 to discuss the plans and how to improve them.  

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The proposals to amend the constitution published by the government in late September fall far short of providing sufficient additional safeguards for the rights to privacy and freedom of expression.

On the contrary, they attempt to insert exemptions which are inadmissible under European law and which would put Malta in breach of its international legal obligations.

All citizens should be upset at this strange turn of events but especially so all members of Malta’s LGBTQI communities who should be up in arms about the failure to explicitly protect their right to private life at the constitutional level.

It is also somewhat surprising that a Labour government, which may have got many things seriously wrong but which recently blazed an enlightened trail when it came to LGBTI issues, seems to have lost the plot when it comes to constitutional change.

We should not miss out on an extremely rare opportunity to significantly strengthen protections for Maltese citizens under their supreme law, the constitution. Here’s why.

The provisions for protecting privacy at the constitutional level have lain there neglected by government after government, Nationalist and Labour, for nearly 60 years.

In the first instance, between 1964 and 1987, the right to privacy was enshrined in (then) Article 33 (c), which was unenforceable in the very terms of the constitution. The incoming Nationalist government in 1987 was rightly concerned about the infringement of human rights in Malta and, thereafter, the right to privacy could be enforced largely through a lower-level law, when the European Convention on Human Rights was made enforceable through Act XIV of 1987.

With Malta gearing up for entry into the European Union, the right to privacy was also reinforced at a lower level when Malta’s first Data Protection Law in 2003 introduced one of the most minimalist levels of protection in the EU.

Since then, privacy has been reinforced somewhat by the introduction of the GDPR at EU level in 2016-2018 but not at the level of the highest law of the land, our constitution.

One would have thought that, come 2022, when finally contemplating the need to strengthen those provisions of Malta’s constitution protecting the right to privacy, the government and its advisors would have taken the opportunity of studying developments in the field since 1964 and incorporated the latest thinking by providing significantly higher levels of protection. This is far from being the case.

Let us first establish a benchmark which would give an indication of what the government’s proposals should have been offering. Ex-ministers of justice and prime ministers on both sides have changed and indeed exited political life in some instances, so it is opportune to now publicly remind our current set of parliamentarians of the proposals both Nationalist and Labour governments have received since 2012 and which they have failed to implement, despite overwhelming evidence at the international level that this is the way to go.

Sins of omission

Despite the changes at the political level and the undoubted problems with institutional memory, had the government’s lawyers entrusted with the task done their homework properly, however, they would have discovered that, in 2021, the entire proposals had been made public in a book chapter¹ from which I shall reproduce the following.

I shall do so at length, since the Maltese public deserves to know the full text of what we should have expected to see in the government’s proposals of September 2022. This article is also an open invitation to the government to explain why it did not instead offer the Maltese nation the following proposals for change in our constitution:

“Delete existing Art. 41 and instead insert new Art. 41

“Art 41 – Protection of right to free development of personality and associated rights

“(1) Every citizen and every natural person resident in Malta is entitled to respect of the supreme values of human dignity, the unhindered development of human personality, justice and political pluralism which shall also be assured by:

“(a) the right to private and family life which includes:

“1. within the meaning of private life, the right to develop and maintain relationships with other people and the outside world. A person’s sexual life is part of his private life, of which it constitutes an important aspect. Private life thus guarantees a sphere within which a person can establish relations of different kinds, including sexual ones and thus the choice of affirming and assuming one’s sexual identity;

“2. within the meaning of family life, those relationships which arise out of marriage or co-habitation or a parent and his/her child or such other ties in substance indistinguishable from those created by the traditional family, irrespective of the existence of blood ties;

“3. informational self-determination that is the right of any natural person to choose to communicate or not to communicate information about himself or herself except where the requirement for such information is reasonably provided for by law;

“4. the right of every natural person and the obligation of all data controllers, (including all public bodies, legal and natural persons) to ensure that personal data is only collected, processed and retained in a secure manner for a public, legitimate and specified purpose for a justifiable length of time. The natural person shall also have the right to be notified of the collection and existence of such personal data and to access, demand correction and, where appropriate, deletion of all such personal data. The law shall provide appropriate safeguards for the protection of such rights in a manner where personal data is construed as being any information which can be linked to an identified or identifiable individual;

“5. the right of any natural person to freedom from surveillance in both physical and virtual space except where such surveillance is carried out by the competent authorities when either an individual is under suspicion of having carried out or being about to carry out a specified criminal offence or for the detection and prevention of crime in a physical and public space, provided that such surveillance is not excessive and disproportionate in a free and democratic society;

“6. the right of any natural person to freedom from interference with private communication of any form or purpose whether such communication be in writing, spoken, electronic or any other form;

“7. the right of any natural person to freely dispose of himself/herself unless by this he infringes on the rights and free­doms of other or public order.  

This article summarised ‘the sins of omission’, what the government of Malta should have offered to its citizens in the way of proposals for constitutional change yet failed to do. 

There are so many sins of omission that all government MPs and cabinet ministers acting conscientiously should put pressure on Prime Minister Robert Abela and persuade him to immediately change course while there is still time.

The detailed proposals I have outlined would be perfectly consistent with Labour’s enlightened past approach to private life matters, especially those issues in the LGBTQI sphere, so why not also join forces with those Nationalist MPs who would equally support such entrenchment of fundamental freedoms?

Sins of commission

There are, however, also ‘the sins of commission’ to deal with. Mistakes which should have never found their way into the text and which parliament is still in time to rectify.

It may help to systematically identify some of the more glaring mistakes which need to be fixed. The most serious of these are the lack of adequate safeguards and the inclusion of exceptions which are inadmissible under European law.

Let’s start with Malta’s obligations under international law. On July 2, 2020, Malta signed Convention 108+ of the Council of Europe and, subsequently, ratified it on November 2, 2020.

Article 11 of that treaty requires that any derogation to the right to privacy must “be provided for by law, respects the essence of the fundamental rights and freedoms and constitutes a necessary and proportionate measure in a democratic society”.

The first key question to ask, therefore, is: How do the government’s proposed constitutional amendments make explicit provision for the tests of necessity and proportionality? (Spoiler alert: they don’t.)

A closer reading of the government’s proposals of September 2022 makes for some startling results. There are precisely 18 words which enunciate the bare bones of the right to privacy: “Everyone has the right to respect for his private and his family life, his home and his correspondence.”

These words were already previously in the constitution but were previously formally unenforceable at the constitutional level.

This feeble effort is complemented by 23 words outlining protection from forceful search and seizure of property. Full stop. No new constitutional safeguards for privacy are introduced.

Contrast these with the explicit safeguards contained in the 412 words which flesh out the rights to privacy within a coherent vision of information flows in society in the proposals published as a benchmark in this article and which the government forgot or ignored.

Then, please, note that the bulk of the government’s 2022 proposals on constitutional amendments regarding privacy consist of 268 words spelling out exceptions, that is, derogations to the right to privacy.

This is quite astounding. Instead of focusing on reinforcing the right to privacy, the government’s main effort is expended on explaining when and how it can use the law to weaken this right.

Those dangerous derogations

This article appears in a newspaper so I will not go into the detail normally reserved for an academic journal. But we need to point out that the 268 words contain derogations which are also very questionable when the tests of necessity and proportionality are applied.

For example, to name but a few of the more glaring examples, when and why should something required for “town and country planning” take precedence over the right to private and family life? When and why should the right to obtain public benefit from utilisation of property trump the right to privacy?

Instead of focusing on reinforcing the right to privacy, the government’s main effort is expended on explaining when and how it can use the law to weaken this right- Joe Cannataci

What is most amazing, however, is how the wording used by the government fails the fundamental test of explicitly requiring derogations to respect the key principle of proportionality. Proportionality is not something which Malta has contracted to internationally, only at the European level as mentioned above in the case of Convention 108+.

On September 13, 1990, Malta also acceded to the UN’s International Covenant on Civil and Political Rights (ICCPR). Any constraints upon the right to privacy under article 17 of the ICCPR must strictly comply with the principles of legality, necessity and proportionality. These requirements are included in both the inter-American and the universal systems of human rights.

In relation to the requirement of legality, any limitation must be expressly, exhaustively, precisely and clearly provided for in a law in the formal and material sense (OEA/Ser.L/V/II IACHR/RELE/INF. 2/09, para. 69).

It is not enough that the restrictions be formally approved and by a competent body; they must also be sufficiently clear, accessible and predictable (CCPR/C/GC/34, para. 25), as well as satisfy the usual mechanisms for deliberation (OC 6/86, IACHR).

The restrictions must pursue one of the exhaustively enumerated legitimate objectives and be necessary, that is, the restriction must be more than "useful", "reasonable" or "desirable" (A/HRC/29/32, para. 34). It must be indispensable to the achievement of the legitimate aim, in that it cannot reasonably be achieved by less restrictive means. (OEA/Ser.L/V/II IACHR/RELE/INF. 2/09, para. 85). 

Measures restricting enjoyment of the right to privacy must comply with the principle of proportionality; they must not unduly interfere with other rights of the persons targeted (A/HRC/29/32, para. 35). Such measures "must be adequate to fulfil their protective role [...] and must be proportionate to the interest to be protected" (CCPR/C/GC/34, para. 34).

In the digital age, protecting these rights requires exceptional attention.

Where do we find all of this (and much more) in the Maltese government’s proposals in the bill published in September 2022? We don’t and this is very disappointing.

Privacy and freedom of expression as well as the right to unhindered development of personality are fundamental rights which everybody should enjoy and the debate about them in Malta should rise above that of partisan politics.

This article is intended as a non-partisan contribution to what should be a constructive national debate. This is not a subject which Nationalists and Labour politicians should agree or disagree about on party lines. This is something about which they have a special responsibility, for this is the first time in nigh on 60 years that the protection of privacy is going to be considered for proper protection at the constitutional level.

Let’s not bungle it now, especially if we have another two generations to wait for the next opportunity to improve protections of our most fundamental of rights.

Joe Cannataci was appointed the UN’s first special rapporteur on the Right to Privacy in 2015 and served the maximum of two three-year terms until 2021. Since April 2022, he serves as the Council of Europe’s lead expert on the interpretation of Article 11 of Convention 108+. He heads the Department of Information Policy and Governance at the University of Malta and holds the chair of European Information Policy and Technology Law at Groningen University in the Netherlands.

 ¹ Mireille M. Caruana and Joseph A. Cannataci, ‘The Implementation of European Privacy Law in Malta’, book chapter in Sammut, Ivan & Agranovska, Jelena. (2021). The Implementation and Enforcement of European Union Law in Small Member States A Case Study of Malta 10.1007/978-3-030-66115-1.