On Wednesday, the government launched a public consultation exercise to enshrine digital rights in the Constitution including the ‘rights’ to internet access, access information online, online freedom of expression and digital informational self-determination. IT Minister Austin Gatt said this was “a strong political statement”.
What have been described as new ‘digital rights’ are not really rights at all- Joe Cannataci
My concern here is whether it is anything more than a political statement since from a technology law and constitutional point of view, the White Paper launched by Gatt is perplexing, to say the least.
Now I have no doubt that Gatt and his advisers may be acting with the best of intentions but good intentions are no substitute for legal competence and common sense.
It is opportune to remind readers that a change to Malta’s Constitution is not something that happens every day. Changes since 1964 were normally concerned with matters of high priority and arrived at after protracted negotiations with the Opposition.
Such were the amendments dealing with the transition to a Republic in 1974 or the 1987 amendments on the proportion of seats in Parliament to first count votes obtained.
This is the first mysterious aspect about last week’s proposals: they mostly do not deal with priority issues at all, not in terms of law and not in real life. Indeed, one is tempted to classify the proposed ‘digital rights’ (bar one) as currently being non-issues.
Thanks partially to Gatt’s efforts, Malta has a high rate of internet penetration and nobody in the country seems to have any real problems with going online, obtaining or exchanging information online or indeed expressing themselves online, which is how it should be.
So why propose now to dedicate valuable parliamentary time to non-issues? If the Maltese Parliament were to be able and willing to allocate parliamentary time to constitutional changes, there are many more priority issues related to digital rights which are awaiting its attention.
If it were to get its priorities right, Parliament would turn its attention to reinforcing the right to private and family life, which has languished in constitutional limbo since 1964.
This right, which is the foundation on which privacy in the digital age is based in most other European countries, is still non-actionable under the Maltese Constitution. The citizen can sue in our constitutional courts on many grounds but not on Chapter IV’s Article 32(c), which is where one finds the only mention of private and family life. With or without the new ‘rights’ announced in the White Paper, Maltese citizens will not be able to seek constitutional court redress if their rights to private and family life are infringed on the internet.
One of the flaws in the White Paper is that its draft constitutional provisions refer the reader to Chapter IV’s provisions on fundamental rights, yet the key parts of Chapter IV dealing with privacy are unactionable or weak or under-developed.
For example, for a right to digital informational self-determination to be intelligible in technology law, it would normally need to be understood in the context of the right to unhindered development of personality, which is nowhere to be found in Chapter IV; nor is there adequate jurisprudence on the matter in the Maltese courts.
Maltese parliamentarians would do well to follow the lead of the drafters of the German Constitution and explicitly introduce into Chapter IV the over-arching right to unhindered development of personality.
Personlichkeitsrecht, as the Germans would call this right to free development of personality, carries with it two constitutional rights which are essential in the digital age: the right to informational self-determination and the right to online digital privacy.
Likewise, the freedom from disproportionate surveillance, the rights to free access of publicly-held information and data protection may also arguably be elevated to constitutional status as has happened in many other EU states. None of these important rights have yet made it into Chapter IV.
In an interview broadcast on TVM news, Claudio Grech stated that this White Paper introduces the right to informational self-determination. This is, at best, totally uninformed and, at worst, entirely misleading. The White Paper does not introduce any ‘rights’ at all, let alone a right to informational self-determination, a legal term as understood by, say, German constitutional law in terms of Informationelle Selbstbestimmung.
If the German understanding of informational self-determination is compared to the proposals in the White Paper, this would be tantamount to comparing the 60-metre-high wall at the Upper Barrakka with a four-centimetre-high toy wall made out of one centimetre Lego bricks. I refuse to speculate on why such a legally ridiculous statement was made, let alone broadcast.
Priorities aside, what is even more perplexing is the Government’s choice of method of constitutional change since it is proposing to insert the new ‘rights’ not as fundamental rights in Chapter IV but only as non-actionable statements of principle in Chapter II. For only the third time in living memory, we have a Government proposing to insert new principles in Chapter II of the Constitution. The reason why almost nobody ever really bothers with Chapter II of the Constitution lies in Section 21 which states: “The provisions of this Chapter shall not be enforceable in any court” and if any Maltese Government does not follow the principles in Chapter II, it will not suffer any sanction.
So, what have been described as new ‘digital rights’ are not really rights at all. They are at best guiding principles, which can be ignored at will, with impunity.
So, if parliamentary time is so precious, why waste it on non-priorities which are non-actionable in a court of law?
The public consultation on these ‘rights’ closes on December 7. Maltese political realities suggest that there is a possibility, at this stage almost a probability, that by then Parliament would have been dissolved and the ‘digital rights’ forgotten as election fever grips the land.
If this were to be the case, then perhaps all political parties would respect our intelligence, seize the opportunity and use their electoral manifestos to promise and then deliver on meaningful constitutional change relevant to the digital age. While they’re at it, they would make many voters grateful if they would honour a promise not to politicise issues like private and family life and allow MPs a free vote on the matter.
Prof. Joe Cannataci is Head of the Department of Information Policy and Governance at the University of Malta.
POSTSCRIPT. The original article was considerably longer than the published version and had to be abridged for reasons of space.
When editing the original text I chose to remove some of the more detailed explanations on legal technicalities and I realise now that, during the editing. I may have inadvertently created the wrong impression on one small point. For the sake of strict accuracy I would like to point out in this postscript that in actual fact, it is currently possible to sue in the Maltese courts on grounds of "private and family life" but this is only possible in terms of The European Convention Act (Act XIV of 1987) and not in terms of Section 32 (c) of the constitution itself. Very unusually for a piece of ordinary legislation, Act XIV of 1987 is enforceable through the constitutional courts. It can however be repealed through a simple majority vote in parliament.
The protection afforded by Act XIV is not considered to be at the same level as the provisions in sections 33-45 of Chapter IV of the Constitution which are entrenched by Art 66 of the Constitution and require a two-thirds majority in Parliament to be amended. Indeed, although also covered by Act XIV of 1987, other parts of the Constitution’s Section 32, specifically the protection from discrimination on grounds of sex, have since 1987 – in 1991 to be exact - been made constitutionally enforceable through detailed provision in section 45 of Chapter IV of the Constitution whereas S 32(c) dealing with private and family life has not received such attention. This lies at the basis of the main thrust of my article about priorities in constitutional reform.
One of the points that I wished to make in the original version of the article is that an opportunity was missed in 1991 when parts of section 32 dealing with discrimination of grounds of sex were made enforceable in terms of Art 45 whereas no similar attention was then paid to making Art 32 (c) enforceable. Once again privacy was then forced to take a back seat to other priorities.
One of the main points that I am emphasizing in the article is that a priority of the next round of constitutional reform should be to make the right to private and family life enforceable as a constitutional right at par with other constitutional rights and while doing so, parliament should take the opportunity to also elevate to enforceable constitutional status a number of important information-related rights which are important and relevant in the digital age.
I think it important to go on record that the original title of my article included the phrase “right direction, wrong priorities, wrong method, wrong timing”.
The “rights” – or better principles proposed in the White Paper go in the right direction but there are other priorities which need to be attended to in constitutional reform before “digital rights” can find their proper context. When priorities like unhindered development of personality, digital on-line privacy and informational self-determination are introduced into Chapter IV, Parliament will have an opportunity of doing that which was impossible in 1964: it is now possible to take advantage of and learn from 50 years of jurisprudence on private and family life within the European Court of Human Rights and distil these into a provision with enforceable status somewhere between Articles 33-45.
While this would be of great relevance to privacy and the flow of information in the digital age it should be pointed out that the discussion would then necessarily go beyond “digital rights” since “private and family life” also encompasses notions like sexual preferences and the right to a family life even for couples which are not heterosexual.
These are matters on which the European Court of Human Rights has ruled at length and in detail but is the Maltese Parliament prepared for a full and frank, unprejudiced discussion on such matters? “Digital Rights” are motherhood and apple pie when compared to hot topics in the right to family life such as “Do gay couples have an inalienable right to get married in the same way as heterosexual couples do?
As a Professor of Constitutional Law used to tell us “pleasures yet to come”. Or not?
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