Data Protected - Malta

Contributed by Mamo TCV Advocates

Last updated July 2018

General | Data Protection Laws

National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement

ePrivacy | Marketing and cookies

National Legislation
Cookies
Marketing by E-mail
Marketing by Telephone

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General | Data Protection Laws

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National Legislation

General data protection laws

The General Data Protection Regulation (EU) (2016/679)(“GDPR”).

The GDPR has been implemented through the Maltese Data Protection Act 2018 (Chapter 586 of the Laws of Malta) (the “DPA”) which took effect on 28 May 2018. 

 

Additional subsidiary legislation implementing the GDPR has also been promulgated. These regulations take advantage of various national derogations, allow the processing of health information for insurance purposes, lower the age at which a child can consent to online services and amend existing legislation.

 

The Law Enforcement Directive has been implemented in Malta by Subsidiary Legislation 586.08.

Entry into force

The GDPR came into force on 25 May 2018.

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National Supervisory Authority

Details of the competent national supervisory authority

The DPA establishes the Information and Data Protection Commissioner as the supervisory authority in Malta.

Office of the Information and Data Protection Commissioner (the “Information and Data Protection Commissioner”)
2, Airways House, Second Floor
High Street
Sliema SLM 1549
Malta

www.idpc.gov.mt

Notification or registration scheme and timing

There is no obligation to notify regulators of any processing under the GDPR. 

Exemptions to notification

Not applicable.

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Scope of Application

What is the territorial scope of application?

The GDPR applies the processing of personal data in the context of the establishment of a controller or processor in the EU.

It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.

Is there a concept of a controller and processor?

Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.

Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited. 

Are both manual and electronic records subject to data protection legislation?

Yes. The GDPR applies to both electronic records and structured hard copy records.

Are there any national derogations?

The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.

The Restriction of the Data Protection (Obligations and Rights) Regulations restrict the rights of data subjects in the circumstances set out in Article 23 of the GDPR.

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Personal Data

What is personal data?

Personal data is information relating to an identified or identifiable natural person.

This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as IP addresses and cookie identifiers.

Is information about legal entities personal data?

No. However, information about sole traders and partnerships is likely to be personal data.

What are the rules for processing personal data?

All processing of personal data must comply with all six general data quality principles. Personal data must be: (a) processed fairly and lawfully; (b) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (c) adequate, relevant and not excessive; (d) accurate and, where necessary, up to date; (e) kept in an identifiable form for no longer than necessary; and (f) kept secure.

The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or recipient’s legitimate interests, except where overridden by the interests of the data subject.

These rules are almost identical to the core requirements for processing personal data in the Data Protection Directive.

Are there any formalities to obtain consent to process personal data?

Obtaining consent will become much harder under the GDPR. 

To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.

In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials. 

The Article 29 Working Party has issued Guidelines on Consent (WP259).

Are there any special rules when processing personal data about children?

Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.

In Malta, the general rule is that minors (anyone under the age of 18) are incapable of entering into a contract and consent would generally be required from a parent or guardian for valid contract formation. In the education sector and in so far as processing of personal data is concerned, consent is lowered to 16 by way of a special law.

In the context of processing of a child’s personal data in relation to the offer of information society services, and in so far as processing of personal data is concerned, age of consent in Malta has been lowered to 13. However, this does not affect the rules for valid contract formation set out above.

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Sensitive Personal Data

What is sensitive personal data?

Sensitive personal data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.

The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.
Information about criminal offences is dealt with separately and is subject to even tighter controls.

Are there additional rules for processing sensitive personal data?

Sensitive personal data may only be processed if a condition for processing sensitive personal data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the field of employment law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.

Maltese Subsidiary Legislation 586.10 regulates the processing of data concerning health for insurance purposes. Among other things, these regulations stipulate that the processing of data concerning health shall be lawful where such processing is necessary and proportionate for the purposes of a policy in the business of insurance, where the data controller cannot reasonably be expected to obtain the consent of the data subject, and where the data controller is not aware that the data subject is withholding consent.

Are there additional rules for processing information about criminal offences?

It is only possible to process information about criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law.

Are there any formalities to obtain consent to process sensitive personal data?

Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.

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Data Protection Officers

When must a data protection officer be appointed?

Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing sensitive personal data on a large scale (including processing information about criminal offences).

No local implementing laws that derogate from the relevant provisions of the GDPR have been introduced.

What are the duties of the data protection officer?

The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. 

The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).

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Accountability and Privacy Impact Assessments

Is there a general accountability obligation?

The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.

Are privacy impact assessments mandatory?

A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing sensitive personal data on a large scale; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV).

The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above. 

In Malta, the Information and Data Protection Commissioner has the power to draw up a list of “high risk” processing activities which would be subject to an impact assessment, but has not done so yet.

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Rights of Data Subjects

Privacy notices

A controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.

The Article 29 Working Party has issued Guidelines on Transparency (WP260).

In Malta, since Maltese and English are both official languages, providing the information in either of the two languages would be acceptable.

Rights to access information

Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The response must be provided within a month, though this can be extended by two months if the request is complex. 

Rights to data portability

Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.

The Article 29 Working Party has issued Guidelines on data portability (WP242).

Right to be forgotten

A data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data. 

Objection to direct marketing

A data subject can object to their personal data being processed for direct marketing purposes at any time. This includes the processing of their personal data for profiling purposes.

Other rights

The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition.

Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subject. The Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).

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Security

Security requirements in order to protect personal data

The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.

In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing. 

Specific rules governing processing by third party agents (processors)

A controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.

The controller must have written contracts with its processor containing the enhanced processor clauses.

Notice of breach laws

A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified.

The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250).

Specific notice of breach laws apply to the electronic communications sector under the Privacy and Electronic Communications Directive

In Malta, controllers in certain sectors may be required to inform sectoral regulators of certain breaches (for example, financial services entities may be required to report certain breaches to the Malta Financial Services Authority).

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Transfer of Personal Data to Third Countries

Restrictions on transfers to third countries

The GDPR contains a restriction on transborder dataflows. Transfers can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (ii) is made pursuant to binding corporate rules; (iv) is made to an importer who has signed up to an approved code or obtained an approved certification; or (v) is otherwise approved by the relevant supervisory authority.

Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.

The position is broadly the same as under the Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.

The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018).

Notification and approval of national regulator (including notification of use of Model Contracts)

In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer. 

For example, there will be no obligation to get approval for the use of Model Contracts (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.

Use of binding corporate rules

The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority that will cover transfers from anywhere in the EU.

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Enforcement

Fines

The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.

A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.

The Article 29 Working Party has issued Guidelines on administrative fines (WP253).

In Malta, any person who: (i) knowingly provides false information to the Information and Data Protection Commissioner in response to an exercise of his investigative powers; or (ii) does not comply with any lawful request pursuant to an investigation by the Commissioner, shall be guilty of an offence and upon conviction, shall be liable to a fine of not less than 1250 and not more than 50,000 euros and/or to a term of imprisonment of six months.

Imprisonment

As outlined in the above entry, a breach of the abovementioned provision of the DPA may lead to imprisonment of a term of six months.

Compensation

Data subjects have a right to compensation in respect of material and non-material damage.

Other powers

Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing. 

Practice

In Malta, there is no current enforcement practice in relation to the GDPR. However, the enforcement of the previous law is instructive.

From January 2017 to December 2017, the Information and Data Protection Commissioner received 71 complaints and 10 personal data breaches notifications.

The following administrative fines were imposed: (i) €500 for unsolicited communications; (ii) €500 for incorrect processing of personal data; (iii) €2,000 for failure to implement appropriate technical and operational measures; (iv) €7,825 for publication of photographs without legal basis; (v) €1,000 for incorrect processing of personal data; (vi) €2,000 for accidental loss of personal data; and (vii) €5,000 for unsolicited communications (the decision is being challenged before the Data Protection Tribunal).

In 2017, the Information and Data Protection Commissioner appealed three Data Protection Tribunal decisions to the Court of Appeal (all pending). An appeal that had been pending since 2013 was dismissed by the Data Protection Tribunal (confirming the Information and Data Protection Commissioner’s original decision). The matter concerned the imposition of a fine of €250 as a result of failure to comply with a request from the Information and Data Protection Commissioner for access to and/or information about particular personal data relevant to an investigation

From January 2018 to June 2018 32 complaints and 20 data breaches were notified to the Information and Data Protection Commissioner . Five administrative fines were imposed for unauthorised disclosure to third parties in the following amounts: €2,500, €500, €1,500, €1,000 and €1,000.

The Information and Data Protection Commissioner assists controllers with compliance with the DPA by enhancing their internal structures, suggesting the appointment of Data Protection Officers and through continuous dialogue. The Information and Data Protection Commissioner does this with the ultimate aim of ensuring that the data subjects’ right to privacy is safeguarded as much as possible. The approach is likely to be similar in relation to the GDPR.

The Information and Data Protection Commissioner remains of the opinion that awareness sessions relating to data protection are very important and that these help controllers introduce and/or implement good practices and norms. The Information and Data Protection Commissioner regularly organises and/or participates in such sessions.

Over the years, the Information and Data Protection Commissioner has opted for the approach of educating controllers rather than imposing a financial penalty. However, the situation is expected to change given the coming into effect of the GDPR.

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

The amendments to the Privacy and Electronic Communications Directive have been implemented into Maltese law through Subsidiary Legislation 586.01, now entitled Processing of Personal Data (Electronic Communications Sector) Regulations (the “Implementing Legislation”).

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Cookies

Conditions for use of cookies

Under the Implementing Legislation, consent is needed for the use of cookies unless the cookie is strictly necessary for the provision of a service to that subscriber or user. The Implementing Legislation does not expressly refer to the use of browser settings as a means to obtain consent. It remains to be seen whether the proposed E-Privacy Regulation will have any effect on the current local position.

Regulatory guidance on the use of cookies

No regulatory guidance has to date been published.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

The Implementing Legislation provides that direct marketing e-mails cannot be sent without prior explicit consent of the subscriber in writing.

Conditions for direct marketing by e-mail to corporate subscribers

The Implementing Legislation provides that direct marketing e-mails cannot be sent without prior explicit consent of the subscriber in writing.

Exemptions and other issues

It is permitted to send e-mails for the purposes of direct marketing if the similar products and services exemption applies. The Implementing Legislation also prohibits direct marketing e-mails from being sent if: (i) the identity of the sender is disguised or concealed; or (ii) an opt-out address is not provided. The sender must also include the eCommerce information.

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Marketing by Telephone

Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)

A person who carries out direct marketing by telephone must, at no charge to the subscriber, ensure that any such direct marketing communications are not sent if the said subscriber requests that such communications cease.

Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)

A person who carries out direct marketing by telephone must, at no charge to the subscriber, ensure that any such direct marketing communications are not sent if the said subscriber requests that such communications cease.

Exemptions and other issues

No exemptions apply. The recipient should be told the identity of the person responsible for the direct marketing call.

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