Birdlife Malta is being charged with an alleged breach of the Data Protection Act related to a series of videos by BBC journalist Chris Packham during the last spring hunting season.
The office of the Data Protection Commissioner is holding Birdlife Malta responsible for complaints filed by seven hunters filmed without their consent during the seven episodes of Mr Packham’s series entitled Malta – Massacre on Migration, which were then uploaded to You Tube.
The Data Protection Commissioner is arguing that in this period the home page of Mr Packham’s website was dedicated to the campaign and specifically stated that it was being carried out “with... the support of Birdlife Malta”.
A link to these videos is available on Birdlife’s Facebook page, with a post that makes a specific reference to these links.
“Birdlife Malta is for the purposes of this campaign deemed to be, unless proven otherwise, controller of personal data... who... jointly with others determines the purposes and means of the processing of personal data,” the Legal Head of the office of the Data Protection Commissioner stated in a letter dated July 2.
It goes against logic- lawyer
Lawyer Michael Zammit Maempel, who specialises in data protection issues, told The Sunday Times of Malta this went against the spirit of the law. “This is a very tenuous interpretation of the law. It is pushing the law to its extreme limit. It goes against logic; it goes against the spirit of the law.”
‘Trying to find them guilty is a perversion of the law’
When asked why such charges were not made against Mr Packham if such breaches had indeed occurred, Dr Zammit Maempel said that if the Data Protection Commissioner wanted to charge someone in the UK, he would need to refer the case to the UK Commissioner. “Obviously if they did this they would be laughed all the way to Filfla and back,” Dr Zammit Maempel said.
He argued that the commissioner trying to find Birdlife guilty of an abuse of personal data is a perversion of the law because the data protection law was there to protect individuals against abuse of personal data, not to inhibit free expression.
In a democratic society where truth matters, controversial issues like hunting cannot be argued in an abstract sense, Dr Zammit Maempel said. It requires groundwork, whether this is done by journalists or members of the public.
I know the vast majority of Maltese people will instantly see through this nefarious mischief
“That is what Birdlife is doing. Birdlife isn’t an individual, but a group of individuals representing a public interest. So can we say they are working in favour of a free expression society? Or are we saying they are abusing personal data? I have no doubt if I were a judge which way I would decide it,” Dr Zammit Maempel said.
He said that literal interpretation of the law can lead to absurdity. “The commissioner trying to find them guilty of abuse of personal data is a perversion of the law,” he said.
The lawyer questioned whether it was right to attempt to silence Birdlife or Chris Packham. “Can we prohibit them from going ahead in this manner because we quote the data protection law at them? I would say, no. Free expression wins hands down.”
Mr Packham said he was staggered that time was being wasted on this “dreadful distraction” from the actual and real issue of the illegal slaughter of migrant birds.
“I know the vast majority of Maltese people will instantly see through this nefarious mischief and wish that their government and its agencies instead channelled their efforts to combat wildlife crime,” Mr Packham said.