1 Relevant Legislation and Competent Authorities
1.1 What is the principal data protection legislation?
As of 25 May 2018, the principal data protection legislation in the EU is Regulation (EU) 2016/679 (the "General Data Protection Regulation" or "GDPR"). The GDPR repealed Directive 95/46/EC (the "Data Protection Directive") and led to increased (though not total) harmonisation of data protection law across the EU Member States.
The provisions of the GDPR are complemented by Maltese legislation, namely the Data Protection Act ("DPA"), Chapter 586 of the Laws of Malta and various pieces of subsidiary legislation implemented under the same Chapter 586.
1.2 Is there any other general legislation that impacts data protection?
General legislation which currently impacts data protection includes:
- Processing of Personal Data (Protection of Minors) Regulations (Subsidiary Legislation 586.04).
- Transfer of Personal Data to Third Countries Order (S.L. 586.05). Restriction of Data Protection (Obligations and Rights)
- Regulations (S.L. 586.09).
1.3 Is there any sector-specific legislation that impacts data protection?
Current sector-specific legislation relating to data protection includes:
- Processing of Personal Data (Electronic Communications Sector) Regulations (Subsidiary Legislation 586.01).
- Processing of Personal Data for the purposes of the General Elections Act and the Local Councils Act Regulations (Subsidiary Legislation 586.06).
- Processing of Personal Data (Education Sector) Regulations (Subsidiary Legislation 586.07).
- Data Protection (Processing of Personal Data by Competent Authorities for the Purposes of the Prevention, Investigation, Detection or Prosecution of Criminal Offences or the Execution of Criminal Penalties) Regulations (Subsidiary Legislation 586.08).
- Processing of Data concerning Health for Insurance Purposes Regulations (Subsidiary Legislation 586.10).
- Processing of Child's Personal Data in relation to the Offer of Information Society Services Regulations (Subsidiary Legislation 586.11).
1.4 What authority(ies) are responsible for data protection?
The relevant data protection regulatory authority is the Information and Data Protection Commissioner ("IDPC").
2.1 Please provide the key definitions used in the relevant legislation:
- "Personal Data" means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
- "Processing" means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
- "Controller" means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data.
- "Processor" means a natural or legal person, public authority, agency or other body which processes personal data on behalf of the controller.
- "Data Subject" means an individual who is the subject of the relevant personal data.
- "Sensitive Personal Data" or "Special Categories of Personal Data" means personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, data concerning health or sex life and sexual orientation, genetic data or biometric data.
- "Data Breach" means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed.
- Other key definitions – please specify (e.g., "Pseudonymous Data", "Direct Personal Data", "Indirect Personal Data")
This is not applicable.
3 Territorial Scope
3.1 Do the data protection laws apply to businesses established in other jurisdictions? If so, in what circumstances would a business established in another jurisdiction be subject to those laws?
As expected, Maltese law does not broaden or narrow the territorial scope of the GDPR. In addition, the Data Protection Act and subsidiary legislation enacted under it apply to:
- the processing of personal data by a controller or processor established in Malta, regardless of where the processing takes place;
- the processing of personal data of
data subjects who are in Malta by a controller or processor not
established in the European Union, where the processing activities
are related to:
- the offering of goods or services, irrespective of whether a payment of the data subject is required, to such data subjects in Malta; or
- the monitoring of their behaviour in so far as their behaviour takes place within Malta; and
- the processing of personal data by a controller not established in the European Union but in a place where the laws of Malta apply by virtue of public international law.
4 Key Principles
4.1 What are the key principles that apply to the processing of personal data?
Personal data must be processed lawfully, fairly and in a transparent manner. Controllers must provide certain minimum information to data subjects regarding the collection and further processing of their personal data. Such information must be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language.
- Lawful basis for
Processing of personal data is lawful only if, and to the extent that, it is permitted under EU data protection law. Article 6(1) of the GDPR provides an exhaustive list of legal bases on which personal data may be processed, of which the following are the most relevant for businesses: (i) prior, freely given, specific, informed and unambiguous consent of the data subject; (ii) contractual necessity (i.e., the processing is necessary for the performance of a contract to which the data subject is a party, or for the purposes of pre-contractual measures taken at the data subject's request); (iii) compliance with legal obligations (i.e., the controller has a legal obligation, under the laws of the EU or an EU Member State, to perform the relevant processing); or (iv) legitimate interests (i.e., the processing is necessary for the purposes of legitimate interests pursued by the controller, except where the controller's interest are overridden by the interests, fundamental rights or freedoms of the affected data subjects). Businesses require stronger grounds to process sensitive personal data (special categories of data). The processing of sensitive personal data is, in accordance with Article 9(2) of the GDPR, only permitted under certain conditions, of which the most relevant for businesses are: (i) explicit consent of the affected data subject; (ii) the processing is necessary in the context of employment law; (iii) the processing is in the vital interest of the data subject or third parties where the data subject is incapable of providing consent; (iv) the data has been publicly revealed by the data subject; or (v) the processing is necessary for the establishment, exercise or defence of legal claims.
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. If a controller wishes to use the relevant personal data in a manner that is incompatible with the purposes for which they were initially collected, it must: (i) inform the data subject of such new processing; and (ii) be able to rely on a lawful basis as set out above.
Personal data must be adequate, relevant and limited to what is necessary in relation to the purposes for which the data is processed. A business should only process the personal data that it actually needs to process in order to achieve its processing purposes.
The right to protection of personal data is not an absolute right and must be considered in relation to its function in society and be balanced against other fundamental rights in a proportional manner.
Personal data must be kept in a form that permits identification of data subjects for no longer than is necessary for the purposes for which the personal data are processed.
- Other key principles –
Data Security – 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, and must be able to demonstrate, compliance with the data protection principles set out above.
Originally published by International Comparative Legal Guide to: Data Protection 2019.
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