AE.

 

What law(s) specifically govern personal data / information?

  • Regulation (EU) 2016/679 (General Data Protection Regulation – “GDPR”).
  • The principal data protection legislation in Malta (and the EU) is the GDPR, which replaced Directive 95/46/EC (“Data Protection Directive”). The GDPR intends to increase the harmonisation of data protection law across the EU Member States.

  • The Data Protection Act (Chapter 586 of the Laws of Malta) and Regulations issued thereunder.

 

What are the key data protection principles in this jurisdiction?:

Lawful basis for processing

The GDPR provides an exhaustive list of legal bases on which personal data may be processed:

  1. consent of the data subject for one or more specific purposes;
  2. contractual necessity;
  3. compliance with a legal obligation of the controller to perform the relevant processing;
  4. protection of the vital interests of the data subject or of another natural person;
  5. performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; or
  6. legitimate interests (i.e. the processing is necessary for the purposes of legitimate interests pursued by the controller, except where the controller’s interests are overridden by the interests, fundamental rights or freedoms of the affected data subjects).

The processing of sensitive personal data requires stronger grounds and is only permitted under certain conditions, of which the most relevant are:

  1. explicit consent of the affected data subject;
  2. the processing is necessary in the context of employment or social security law; or
  3. the processing is necessary for the establishment, exercise or defence of legal claims.

Transparency

Personal data must be processed lawfully, fairly and in a transparent manner. Regarding the processing of personal data, controllers are obliged to provide certain information to data subjects. Such information must be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language.

Purpose limitation

Personal data may only be collected for specified, explicit and legitimate purposes and must not be further processed in a manner that is incompatible with those purposes.

Data minimisation

The processing of personal data must be adequate, relevant and limited to what is necessary in relation to the purposes for which those data are processed.

Accuracy

Personal data must be accurate and, where necessary, kept up to date.

Storage limitation

Personal data must be stored in a form that permits identification of data subjects for no longer than it is necessary for the purposes for which the personal data was initially collected.

Integrity and confidentiality

Personal data must be processed in a manner that ensures appropriate security of those data, including protection against unauthorised or unlawful processing and against accidental loss, destruction or damage, using appropriate technical or organisational measures.

Accountability

The controller is responsible for processing of data in accordance with the GDPR. In particular, the controller is obliged to implement appropriate technical and organisational measures to ensure and to be able to demonstrate that processing is performed in compliance with the GDPR.

 

What is the supervisory authority / regulator in charge of data protection?

The Information and Data Protection Commissioner (the IDPC).

 

Is there a requirement to register with a supervisory authority / regulator?

No, there is no registration requirement in order to process personal data.

 

Is there a requirement to notify the supervisory authority / regulator?

As explained in further detail below, the controller must inform the IDPC of a transfer to a third country that is not the subject of an adequacy decision and if appropriate safeguards are absent.

 

Is it possible to register with / notify the supervisory authority / regulator online?

N/A

 

What are the key data subject rights under the data protection laws of this jurisdiction?

Right to information

Pursuant to Articles 13 and 14 GDPR, data subjects have the right to be provided with information on the identity of the controller, the reasons for processing their personal data and other relevant information necessary to ensure the fair and transparent processing of personal data.

Right of access

A data subject has the right to obtain from a controller certain information in respect of the data subject’s personal data as listed in Article 15 GDPR.

Additionally, the data subject may request a copy of the personal data being processed.

Right to rectification of errors

Pursuant to Article 16 GDPR, data subjects have the right to rectification of inaccurate personal data.

Right to deletion/right to be forgotten

Data subjects have the right to erasure of their personal data (the “right to be forgotten”) if one of the reasons as listed in Article 17 GDPR apply.

Right to restriction of processing

Data subjects have the right to request restriction of the processing of personal data, which means that the data may only be processed for limited purposes as defined in Article 18 GDPR.

Right to data portability

Data subjects have a right to receive a copy of their personal data in a commonly used machine-readable format, and transfer their personal data from one controller to another or have the data transmitted directly between controllers (Article 20 GDPR).

Right to object to processing

Data subjects have the right to object, on grounds relating to their particular situation, to the processing of personal data where the basis for that processing is either public interest (Article 6 para 1(e) GDPR) or legitimate interest of the controller (Article 6 para 1(f) GDPR). The controller must cease such processing unless it demonstrates compelling legitimate grounds for the processing which override the interests, rights and freedoms of the relevant data subject or requires the data in order to establish, exercise or defend legal rights.

Data subjects have the right to object to the processing of personal data for marketing purposes, including profiling.

Right to withdraw consent

A data subject has the right to withdraw their consent at any time (Article 7 para 3 GDPR). The withdrawal of consent does not affect the lawfulness of processing based on consent before the withdrawal.

Right to complain to the relevant data protection authority(ies)

Data subjects have the right to lodge complaints concerning the processing of their personal data with the competent data protection authority.

Right not to be subject to automated individual decision-making

Under certain circumstances, data subjects have the right not to be subject to a decision based solely on automated processing of data (including profiling), which produces legal effects or similarly significant effects for the data subject (Article 22 GDPR).

This is a summary only and there are some qualifications and limitations to these rights which may be relevant.

 

Is there a requirement to appoint a data protection officer (or equivalent)?

Under the GDPR (articles 37 to 39), a Data Protection Officer (DPO) must be appointed by organisations that:

  • are a public authority or body (except for courts acting in their judicial capacity);
  • whose core activities require large scale, regular and systematic monitoring of individuals (for example, online behaviour tracking); or
  • whose core activities consist of large scale processing of special categories of data or data relating to criminal convictions and offences.

This applies to both controllers and processors. Organisations that are not required to appoint a DPO may do so voluntarily. In making a voluntary appointment, organisations should be aware that the same requirements of the position and tasks apply as of the appointment had been mandatory.

The DPO must have expert knowledge of data protection law and practices, be independent and report to the highest management level.

 

Do data protection/ privacy impact assessments need to be carried out in certain circumstances?

Pursuant to Article 35 GDPR the controller is obliged – prior to the processing – to carry out a data protection impact assessment ("DPIA"), where a type of processing, in particular using new technologies, and taking into account the nature, scope, context and purposes of the processing, is likely to result in a high risk to the rights and freedoms of natural persons.

In particular, a data protection impact assessment is required in the case of:

  • a systematic and extensive evaluation of personal aspects relating to natural persons which is based on automated processing, including profiling, and on which decisions are based that produce legal effects concerning the natural person or similarly significantly affect the natural person;
  • processing on a large scale of special categories of data, or of personal data relating to criminal convictions and offences; or
  • a systematic monitoring of a publicly accessible area on a large scale.

The IDPC provides a non-exhaustive list of types of processing operations where a data protection impact assessment may be required:

  • Systematic monitoring;
  • Automated-decisions;
  • Use of innovative technologies;
  • Special categories of personal data;
  • Biometric data;
  • Genetic data;
  • Data concerning vulnerable persons; and
  • Employee monitoring.

 

Does this jurisdiction have any specific data breach notification requirements?

In the case of a data breach, the controller must notify such a personal data breach to the IDPC within 72 hours from becoming aware of such breach.

The notification is not required in those specific cases where the controller determines that the breach is unlikely to result in a risk to the rights and freedoms of data subjects.

When the personal data breach is likely to result in a high risk to the rights and freedoms of natural persons, the controller is required to communicate the personal data breach to the data subject without undue delay.

The EDPB (European Data Protection Board) has issued guidelines on the data breach notification, detailing requirements for data breach notifications (Guidelines 9/2022 on personal data breach notification under GDPR and Guidelines 01/2021 on Examples regarding Data Breach Notification).

 

What restrictions apply to the international transfer of personal data / information?

International Data transfers (i.e. jurisdictions outside the European Economic Area (“EEA”)) can only take place if the transfer is subject to an “Adequacy Decision” or the recipient has implemented certain safeguards required by the GDPR:

The EU Commission has issued decisions concerning an adequate level of protection on the basis of Article 45 para 3 GDPR for the following countries: Andorra; Argentina; Canada; Faroe Islands; Guernsey; Isle of Man; Israel; Japan; Jersey; New Zealand; Republic of Korea, Switzerland; and Uruguay. The United Kingdom has been recognised by EU Commission as providing adequate protection under the GDPR and the Law Enforcement Directive.

For a data transfer to all other countries the controller is obliged to ensure compliance for international data transfers:

The transfer may be based on contracts agreed between the data exporter and data importer provided that they meet the protection standards outlined in the GDPR. Additionally, prior approval by the relevant data protection authority is key.

The transfer may be based on Binding Corporate Rules (“BCRs”), in particular within a group of entities. For BCRs prior approval by the relevant data protection authority is needed. Most importantly, the BCRs need to include a mechanism to ensure they are legally binding and enforced by every member in the group of entities.

The transfer is covered by one of the permitted derogations set out in article 49 (in the absence of an adequacy regulation or appropriate safeguard), such as the explicit consent of the data subject, the transfer is necessary for the performance of a contract between the data subject and data controller at the data subject's request or in the interest of the data subject, or the transfer is necessary for the establishment, exercise or defence of legal claims.

 

Do the data protection laws in this jurisdiction have “extra-territorial effect” (i.e. do they apply to organisations outside this jurisdiction)?

With regard to its geographic scope, the GDPR combines the principles of establishment, market place and territoriality.

Pursuant to the principle of establishment, the GDPR is applicable for processing activities carried out in the context of the activities of an establishment of a controller or a processor in the EU, regardless of whether the processing itself takes place in the EU.

Pursuant to the principle of the market place, the GDPR is applicable for the processing of personal data of data subjects situated in the EU by a controller or processor who is not situated in the EU, where the processing activities are related to (i) the offering of goods or services to such data subjects situated in the EU, irrespective of whether a payment of the data subject is required; or (ii) the monitoring of their behaviour as far as their behaviour takes place within the EU (principle of the territoriality).

 

What rules specifically deal with marketing?

The Processing of Personal Data (Electronic Communications Sector) Regulations specifically prohibit the use of any publicly available electronic communications service to make an unsolicited communication for the purpose of direct marketing by means of:

  • an automatic calling machine;
  • a facsimile machine; or
  • electronic mail;

to a subscriber or user, irrespective of whether such subscriber or user is a natural person or legal person, unless the subscriber or user has given their prior consent in writing to the receipt of such a communication.

Notwithstanding the above, where a person has obtained from customers their contact details for electronic mail in relation to the sale of a product or a service, that person may use such details for direct marketing of its own similar products or services. However, customers shall be given the opportunity to object, free of charge and in an easy and simple manner, to such use of electronic contact details at the time of their collection and on the occasion of each message where the customer has not initially refused such use.

 

Do different rules apply to business-to-business and business-to-consumer marketing?

As per the above, the Regulations do not make a distinction between the recipient of communication.

 

What rules specially deal with electronic marketing (for example, by email, text message, WhatsApp message, online ads etc)?

Please refer to the above.

 

What rules specifically deal with cookies?

The Processing of Personal Data (Electronic Communications Sector) Regulations implement the provisions of the ePrivacy Directive (Directive 2009/136/EC), which is often referred to as the ‘Cookie Law’.

In terms of the Maltese Regulations, the storing of information or the gaining of access to information stored in the terminal equipment of a subscriber or user is only allowed on condition that the subscriber or user concerned has given their consent, having been provided by the controller with clear and comprehensive information.

In addition, traffic data relating to subscribers and users processed for the purpose of the transmission of a communication and stored by an undertaking which provides publicly available electronic communications services or by an undertaking which provides a public communications network must be erased or made anonymous when it is no longer needed for the purpose of the transmission of a communication.

 

What are the consequences of non compliance with data protections laws (including marketing laws)?

The GDPR provides for a maximum penalty in the amount of the higher of EUR 20 million or 4% of worldwide turnover (Article 83 GDPR).

The Maltese Data Protection Act does not specifically set out the applicable administrative fines which may be imposed by the IDPC for non-compliance. Since the GDPR is directly applicable, the IDPC may impose the administrative fines as set out in Article 83 of the Regulation.

Without prejudice to the above, in terms of the Data Protection Act, any person who:

  • knowingly provides false information to the IDPC when so requested by the IDPC pursuant to its investigative powers in terms of the GDPR, or any other law; or
  • does not comply with any lawful request pursuant to an investigation by the IDPC;

shall be guilty of an offence and shall, upon conviction, be liable to a fine of not less than €1,250 and not more than €50,000 or to imprisonment for six months or to both such fine and imprisonment.

In addition, any person who contravenes or fails to comply with the Processing of Personal Data (Electronic Communications Sector) Regulations shall be liable to an administrative fine not exceeding €23,293.73 for each violation and €2,329.37 for each day during which such violation persists, which fine shall be determined and imposed by the IDPC.

 

In broad terms, multinational organisations should be aware of what key factors if they process personal data / information from individuals within this jurisdiction, without being located there?

Controllers and processors who are not established in the EEA are generally required under Article 27 GDPR to designate a representative in the EEA where their activities fall within the territorial scope of the EEA data protection regime under Article 3, specifically if they involve processing personal data of data subjects within the EEA in connection with the provision of goods or services, or the monitoring of the behaviour of data subjects located in the EEA.

Since Malta is a member state of the EU, it is very important to keep in mind that the processing of personal data of individuals who are physically present in Malta will fall within the scope of the GDPR.

 

What upcoming data protection developments should multinational organisations be aware of?

At a European level, the EU is currently discussing the ePrivacy Regulation which will be repealing the current Privacy and Electronic Communications Directive (Directive 2002/58/EC). However, as of today there is still no fixed date by when this new Regulation will come into effect.

 

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