IDPC orders Mark Camilleri to delete Yorgen Fenech-Rosianne Cutajar chats

Updated at 9:13pm with Mark Camilleri's reaction

Author and former Book Council Chairman Mark Camilleri has been ordered to erase copies of the chats between MP Rosianne Cutajar and the man awaiting trial for the murder of Daphne Caruana Galizia, which he had published on his blog last year.

This emerges from a decision handed down on Friday by Information and Data Protection Commissioner Ian Deguara, in response to a complaint filed on behalf of Yorgen Fenech last April.

In a reaction on Saturday, Camilleri doubled-down on his decision to publish the chats, insisting he will defy the order and "fight it in every possible court without relenting".

Fenech had framed his complaint against Camilleri in terms of the EU’s General Data Protection Regulations (GDPR), describing the publication of the chats as “illegal, unnecessary and unjustified.”

The author had uploaded unredacted copies of the chats in March last year, just 24 hours before he was due to face Cutajar in court over a libel case which the MP had filed against him, in which she had denied having a relationship with Fenech. The Criminal Court subsequently ordered that Camilleri be charged with contempt of court for publishing the chats which were allegedly obtained from sealed evidence in the murder case against Fenech.

Cutajar’s lawyers are reportedly also considering whether to file human rights proceedings.

The chats published by Camilleri suggest that the opposite was true and provide an insight into a certainly intimate and apparently sexual relationship, as well as indicating that Cutajar had traded in influence and failed to disclose having received expensive gifts from the Tumas magnate.

In his complaint to the IDPC, Fenech said the publication had caused him and his family “immeasurable distress and anguish.” 

“By no stretch of anyone’s imagination can it be said that there is substantial public interest in the dissemination of private conversations with a third party (which topics of conversation have absolutely nothing to do with the criminal proceedings against the data subject). The post only serves to create sensationalism and places the data subject  in a perpetual negative light in the public eye,” Fenech’s lawyers argued.

On his part, Camilleri had argued that the contents of the WhatsApp chats he disclosed were of significant public interest and that it was on this basis that he had chosen to publish them.

“Upon reviewing the conversations in question, it becomes immediately evident that they  pertain to a matter of public interest involving an individual accused of the murder of a journalist, Daphne Caruana Galizia, and also a prominent businessman in our country,  involved in numerous government dealings, and a Member of Parliament affiliated with the same government,” said the author. 

Camilleri’s lawyer argued that the publication of the chat had been done within the ambit of article 9 of the Data Protection Act which stipulates that data can be processed in the public interest and in accordance with the right to freedom of expression and the publication was proportionate, necessary and justified for reasons of  substantial public interest.

The defendant went on to list a number of issues of interest to the public which had only come to light precisely because he had published the chats: “the fact that [Rosianne Cutajar] received a substantial amount of money in cash as a gift from [Yorgen Fenech] as payment for negotiating a property deal, something which she had always publicly denied; her infamous “I don’t care, everyone is pigging out” comment about other Government MPs making income on the side, as well as the fact that she had received a second salary for consultancy services at ITS, which she had failed to declare.  

The author’s lawyer also pointed out that the Broadcasting Authority had already pronounced itself on the merits of the chats’ publication and had “explicitly stated that the contents of these WhatsApp chats were of public interest.”

Fenech’s lawyers had replied, arguing that the fact that, out of over 370 pages of chats, “[Camilleri] could only sum up four points in an attempt to justify his defence, speaks volumes.” 

In addition, the points Camilleri raised did not satisfy the public interest test, claimed Fenech’s lawyers, going on to argue that the facts Camilleri had made reference to had either already been published in the past and therefore held no news value, or could have been demonstrated without resorting to publishing sensitive and private personal data, and were “inaccurate and presented with a false slant.” 

The Commissioner agreed with the complainant’s submissions, stating that while he recognised the importance of freedom of expression, he also emphasised “the crucial role of safeguarding the rights and reputation of others, particularly when media content divulges intimate or personal information.”

His decision quotes case law from the European Courts which establishes that a breach of fundamental human rights can occur by the publication of statements contained in private documents which were not intended to be publicly disseminated, and which were made known only to a restricted number of persons, if the statements in question “were not only capable of tarnishing the targeted person’s reputation, but also of causing harm to both their professional and social environment. “

The IDPC also noted that in November 2020, the Court of Magistrates had imposed a ban on the publication of the contents of the inquiry, which was later confirmed by the Criminal Court one year later, in November 2021.

Deguara pointed out that the Court of Magistrates and the Criminal Court had both explicitly ordered that no information from the procedural acts of the case, including its documents, was to be published in any form or medium.  This restriction was strictly confined to accessibility by the parties directly involved, observed the IDPC, concluding that this instruction was primarily aimed at safeguarding the integrity of the legal process while upholding confidentiality. 

“It is imperative to note that the Commissioner’s authority does not extend to challenging or overturning decisions made by the superior courts. Upholding this principle is fundamental in preserving the credibility of the legal framework and maintaining adherence to the rule of law.”

On the other hand, Deguara stressed that the free press played an essential role in democracy. “Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, as well as the need to prevent the disclosure of information received in confidence, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest.” 

The wording of the law places the onus upon the person controlling the personal data, in this case, Camilleri, to “concretely show that the processing is proportionate, necessary and justified for reasons of substantial public interest,” observed the Commissioner, stating that Camilleri had made no attempt to remove or redact information pertaining to third parties, who were not relevant to the points he had been making.

“[Camilleri] could have been faithful to his journalistic freedoms and conducted a thorough assessment by carefully going through all the messages included on the 370 pages in order to identify those chats which were specifically in the substantial public interest to disclose,” he said. 

Deguara ruled that journalist’s exemption under data protection law “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 right to the protection of personal data pertaining to the complainant.” 

Fenech “certainly did not have any reasonable expectation that his exchange with the third party, which specifically included details in relation to his private and family life, was going to be publicly disclosed,” he added.

Ruling that Camilleri had failed to demonstrate that the processing of Fenech’s personal data was proportionate, necessary and justified for reasons of substantial public interest, the Commissioner ruled its publication to be unlawful and ordered that the offending chats be erased within 3 days, while warning the author that the decision was legally binding. Failure to comply  would make Camilleri liable to an “effective, proportionate and dissuasive” administrative fine, said the Commissioner, before going on to warn that “appropriate enforcement action” would follow any further, similar, infringements. Camilleri has 20 days to appeal the ruling.

Cutajar had been forced to resign from Labour's parliamentary group in April 2023, in the wake of the chats' publication, but a mere 9 months later, Prime Minister Robert Abela has already mooted the possibility of having her return.