Updated 4.15pm with Camilleri's reaction
Mark Camilleri has been ordered to remove WhatsApp chats between Rosianne Cutajar and Yorgen Fenech offline by Malta’s data protection commissioner.
The commissioner gave Camilleri, an author and blogger, three days to comply with the order or else face an administrative fine that is “effective, proportionate and dissuasive.”
But in a reaction on Saturday afternoon, Camilleri said he intends to appeal the decision insisting there was public interest in publishing the chats.
Information and Data Protection Commissioner Ian Deguara was asked to probe the issue by Fenech, who filed a complaint two weeks after Camilleri released 370 pages of WhatsApp chats between himself and Cutajar on his blog.
That probe – which is distinct from a separate police investigation into Camilleri’s decision to release the chats – has now concluded that releasing the chats in their entirety was not in the public interest, did not benefit a democratic society and went beyond the “journalistic exemption”.
Fenech is an heir to the Tumas business empire who is currently in prison awaiting trial for complicity in the murder of journalist Daphne Caruana Galizia. Cutajar is an independent MP who was forced out of the Labour Party following revelations that emerged from the leaked chats with Fenech.
Camilleri released the chat transcripts on his blog on March 21, 2023, on the eve of a hearing in libel proceedings that the Cutajar had filed against him. Camilleri had claimed in his book A Rent Seeker’s Paradise that Cutajar had received “corrupt money” from Fenech and had an affair with him to help her political career.
A day before the libel case was to continue, Camilleri published a blog post titled, ‘Here are the full chat transcripts between Rosianne Cutajar and Yorgen Fenech’.
Those chats came from Fenech’s mobile phone, which had been deposited in court as evidence in the murder proceedings against him. Two separate courts had ordered a ban on the publication of chat conversations extracted from Fenech’s phone.
Fenech’s lawyers subsequently filed an IDPC complaint.
After hearing submissions by both parties, the Commissioner concluded that Camilleri had breached data protection laws by publishing the conversations.
No “automatic blanket exemption”
Exemptions to data protection laws allow for personal data to be processed when that is “proportionate, necessary and justified for reasons of substantial public interest.”
A journalist may only benefit from exemptions to data protection rules by effectively proving that processing or publishing the data satisfies the public interest test, the commissioner said.
Citing the judgment of Satakunnan Markkinaporssi Oy and Satamedia Oy vs Finland the Commissioner said that, “public interest cannot be reduced to the public’s thirst for information about the private lives of others, or to an audience’s wish for sensationalism or even voyeurism.”
The onus was on Camilleri to “concretely show” that he had sought to abide by the law before publishing the data online, the commissioner said.
Camilleri had failed to distinguish between different categories of data in the chats, the IDPC said. Some of the information made public concerned Fenech’s sex life and was therefore to be treated differently according to EU data protection laws.
Since it was “very intrusive and highly sensitive” the law afforded such data “heightened protection” and prohibited the publication for journalistic purposes unless there was a valid legal basis.
In this case, Camilleri “did not even attempt to explain” which ground served as his legal basis for publishing data about Fenech’s sex life, the IDPC said.
“This simply demonstrates that [Camilleri] did not undertake an assessment to determine which type of personal data were to be published on his blog,” said the Commissioner, emphasizing that “any individual who seeks to rely on journalistic exemption should be in a position to demonstrate that specific considerations were given” depending on the different categories and level of intrusiveness.
In his submissions, Camilleri “vaguely” made reference to the “public interest” without presenting details to prove how he ensured that the publication of all messages in those 370 pages of chats met data protection requirements.
He failed to show how publishing those messages was a matter which “affects the public or concerns the public.”
Camilleri did not even attempt to redact or remove personal data pertaining to other individuals, the IDPC said.
“Journalistic exemption should not be treated as a blanket exemption and the approach adopted by [Camilleri] certainly oversteps the boundaries of the right to the freedom of expression and interferes with the essence of the protection of the fundamental human right to the protection of personal data pertaining to [Fenech],” the Commissioner stressed.
Camilleri could have been “faithful” to his journalistic freedom by carefully sifting through the 370 pages so as to identify those messages which were “specifically in the substantial public interest” before disclosing the full chat transcripts.
Given that he had failed to prove that the publication was “proportionate, necessary and justified” for substantial public interest, Camilleri’s publication was unlawful and for that reason he was reprimanded and ordered to pull down those chats produced as two attachments to the post.
Failure to comply makes Camilleri liable to an administrative fine that is “effective, proportionate and dissuasive,” the commissioner said.
Camilleri has 20 days to appeal the decision.
Speaking to Times of Malta, Camilleri said he will not be deleting the chats, as instructed.
"It's in the public interest that these chats are available. These chats took place when Cutajar was representing the people in parliament. There are enough legal reasons to defend this argument and I am not worried. A reasonable court will immediately understand that there is a public interest."