Prime Minister’s chief of staff seeks protection against publication of health details

The Prime Minister’s chief of staff, Keith Schembri, through his and Konrad Mizzi’s lawyer Alex Sciberras, has written to the Data Protection Commissioner to protest against the publication (which they call processing) of his details of his health and of his bank payments connected to his health.

The reports to which he objects, requesting the Data Protection Commissioner to order me to delete them, are this one and also this one.

Mr Schembri, through his lawyer, is not contesting the facts contained within those reports, or their veracity, but is seeking instead to have them removed by citing provisions in the Data Protection Act that govern the processing of information by, for example, banks, clinics and insurance companies but not the press, which publishes and not processes.

You can read the letter sent to the Data Protection Commissioner by the Prime Minister’s chief of staff’s legal counsel here: keith-schembris-letter-to-the-data-protection-commissioner

You can read my reply, which I have just written and sent, below.

———

23rd November 2016

Mr Saviour Cachia
Information and Dara Protection Commissioner
Level 2, Airways House
High Street
SLIEMA

Dear Sir,

I refer to the communication sent to your office by Dr Alex Sciberras, acting for the Prime Minister’s chief of staff, Keith Schembri, dated 15th November 2016, in which Mr Schembri claims “breach of privacy arising from an illicit processing of personal data” and states that the two news reports in question are “an abhorrent violation of (his) right to private life”.

Dr Sciberras cites Articles 9 and 12 of the Data Protection Act, which are intended to regulate the processing of sensitive information by companies which handle that information (banks, health organisations, hospitals & c) or by government departments which control and keep that information (Identity Malta, the Department of Health, the Inland Revenue & c). Articles 9 and 12 of the Data Protection Act do not regulate the press and news stories which are of public interest – as distinct from being interesting to the public – because the legal terms used in respect of the press are publication and publishing and not processing, which refers to holding, controlling, keeping or moving the information around.

The press is not in the same category as banks, hospitals, doctors, clinics, insurance offices, government departments and the like. The job of the press is not to process information or hold on to it for suspect purposes, but to report on matters that are of public interest. While ordinary people – that is, people who are not politicians or power-brokers – are protected by the all-encompassing right to privacy from having anything at all published about them in the press, unless they are arraigned in court for crimes, and this with no need for recourse to the provisions of the Data Protection Act because that right existed at law even prior to the coming into force of that act, the same cannot be said of politicians, state decision-makers, and high public officials who include the Prime Minister’s chief of staff.

Keith Schembri is the second most powerful individual in the country, ceding only to the Prime Minister whose closest aide he is, and on whom he exerts a tremendous influence. He operates in tandem with the one other person on whom the Prime Minister relies significantly – the Minister Within the Office of the Prime Minister, Konrad Mizzi. It is no coincidence that both Mr Mizzi and Mr Schembri use the same lawyer for the purpose of fighting off press coverage of activities and facts which they would rather keep private.

Though Mr Schembri is not an elected representative of the people, there is no doubt that he is a key public figure and power-broker, and the most important non-elected government official who, by the Prime Minister’s own admission in public, was the strategist behind his electoral victory of 2013 and responsible for brokering many of the government projects of the last almost four years. We are talking of somebody who wields a very significant amount of power in Malta and, through his private business and his government position, a network of potentially illicit contacts beyond Malta, as shown by the momentous documentation taken from Mossack Fonseca’s server in Panama and known since as the Panama Papers.

Mr Schembri has offshore companies, his ownership hidden by nominee shareholders and directors, in the British Virgin Islands, Panama, Gibraltar and Cyprus, and also a trust in New Zealand – and those are just the ones the existence of which is known beyond doubt. There may be more, none of which were declared to the authorities in Malta and all of which have been used for the illicit purpose of defrauding those authorities, before and after his ascent to the Office of the Prime Minister.

We speak here of someone who wields a highly significant amount of power, perhaps equal to that of the Prime Minister if it were not for the fact that it is the Prime Minister who has executive power. That power should come with a corresponding degree of scrutiny by the press and the public in general. The public, however, depends on the press and on members of the Opposition, who are protected by parliamentary privilege precisely for that reason.

It is deeply disingenuous of the Prime Minister’s chief of staff to try to pass himself off as an ordinary private citizen, citing articles in the Data Protection Act that are designed to protect Joe Citizen from the breach of his privacy by release of, for example, his hospital files or insurance documents to prying eyes. For Mr Schembri and his legal counsel to speak as though he is (fictitious) Mr John Borg, an anonymous clerk with a shipping company, who has had his ‘personal details’ and ‘sensitive data’ published in the press, is completely unacceptable when set against the standards of normal democratic societies. It is true that Malta is not a normal democratic society, and becomes less so by the week – largely due to the concerted efforts of Mr Schembri himself and those with whom he conspires on government deals that are withheld from the scrutiny of journalists and Opposition MPs (and, one suspects, also from government MPs) – but we should at least adhere to the pretence and the form that it is.

When the second most powerful government official and political operator in the country cites the Data Protection Act to keep the press off his back, we are no longer at the thin end of the wedge but have forced that wedge halfway into basic democratic norms. Mr Schembri may well be a disciple of the President Elect of the United States in his thinking about democracy and the press, but that is not an attitude that should be encouraged.

If the Prime Minister’s chief of staff simply stuck to his job and performed his duties, and only his duties, without controversy, while taking orders from the Prime Minister rather than constantly seeming to conspire with him in a relationship between equals, then yes, the argument could be considered that there is no public-interest justification for publishing his health details and the bank payments that are tangential on them. But Mr Schembri has been the subject of wide-ranging scandal since it was revealed last February that he conspired with the then Energy Minister, Konrad Mizzi, and with a third person too important for his name to be given in an email (it was given to Mossack Fonseca over Skype instead), to incorporate matching companies in Panama sheltered by trusts in New Zealand.

It cannot be overemphasised that these companies and trusts were intended, by their very nature and the way they were set up and organised, to be completely and permanently secret, and that it was only through a complete fluke and their bad luck that the documents revealing every last detail of how the companies were incorporated were among the hundreds of thousands of emails and documents pulled from Mossack Fonseca’s server in Panama and handed over to one of Germany’s most important newspapers, which then called in the International Consortium of Investigative Journalists.

It is worth pointing out that the same tranche of papers did not only reveal Mr Schembri’s illicit activities after he became chief of staff, but also his illicit activities before he took on that role, with companies in the British Virgin Islands, Cyprus and Gibraltar, which were not disclosed to the Maltese authorities, and through which he drew into illegal financial intrigue the managing director of Malta’s most influential newspapers of the time and their sister printing operation, Adrian Hillman, leading to Mr Hillman’s dismissal by the board of directors within hours of the news breaking.

The bank statement from which I obtained details of the considerable fees which Mr Schembri paid to a private clinic in Rome, last year, were not “illegally processed”. It did not come from the bank or anybody connected with the bank, but is among the many documents – at least one of which appears to be forged, because it is made out showing the address of a branch of HSBC bank which had been closed for 18 months already at that date – which Mr Schembri, through his accountants Brian Tonna and Karl Cini of Nexia BT, used to try and persuade one offshore-jurisdiction bank after another to open a deposit account for his secret company in Panama – without success, as far as the facts in the documents, which end in December 2015, go.

Because that bank statement forms part of the Panama Papers, it is instantly accessible to hundreds of media organisations worldwide which have formal access to the documents under signed agreement with the International Consortium of Investigative Journalists, and to the thousands of journalists who work for those organisations. In Malta, it is readily available to The Malta Independent and to the Times of Malta, which are both signatories to a formal agreement with the ICIJ on the Panama Papers.

As the wealth of information in the Panama Papers documents shows clearly, both before and after achieving his position in the government Keith Schembri had and still has absolutely no scruples at all about incorporating not one but several companies in secretive jurisdictions, concealing his ultimate beneficial ownership behind nominee shareholders and directors, and hiding the existence of these companies from the Maltese authorities. There is no licit purpose for such behaviour and choices.

Worse still, because these companies and the offshore bank accounts linked to them (there are bank accounts that existed prior to his attempts at opening one for his new Panama company) continue to exist and have not been closed down, the Prime Minister’s chief of staff can continue to pursue illicit activities without scrutiny. The ability to scrutinise his offshore, nominee operations is next to impossible as it is, but to compound that, he is the Prime Minister’s chief of staff and those who are supposed to investigate him are too afraid or for other reasons unwilling to do so.

How does this fit into the context of the publication of news that Mr Schembri is suffering some considerable ill health and has been diagnosed with a (non-specified) tumour behind his eyes, leading to his having to travel to London and to the United States for tests and treatment? The public-interest aspect should be obvious in the context of the reasons for the ongoing scandal. Aside from the fact that in ordinary democracies it is entirely normal for key government figures to announce a serious health issue by means of a press statement or press briefing, even if the full details of the prognosis are not disclosed, there is the immediately apparent risk that, if Mr Schembri’s prognosis is terminal, or he believes it to be potentially terminal, then every last bit of restraint on his behaviour – and there does not seem to be much as it is – will be gone.

Somebody facing terminal illness, who is given X number of months or years to live, does not fear the prospect of investigation, prosecution, or imprisonment. On the contrary, the motivation of somebody with his mindset, who finds himself suddenly facing terminal illness or death in the short term, will be to intensify the scale of illicit activity so as to secretly stash away in offshore accounts even more in less time, leaving his family more than comfortably provided for after his death.

The criminally or fraudulently inclined, if they are diagnosed as seriously or fatally ill, may find that they have effectively achieved complete invincibility because the law will not catch up with them before death does. They may as well do their worst at that stage, because all fear of retribution and consequences is now completely absent. Any fear they may have had of getting caught (pending a change in government and Commissioner of Police) and spending time behind bars no longer exists.

In the context of all the above, but pertaining to the publication of health details specifically, may I refer you to the case of Standard Verlags GmbH vs Austria (No. 2) – application number 21277/05, final judgement by the European Court of Human Rights, dated 4th September 2009. This judgement reaffirms the principle that the health of politicians is a matter of public interest and concern, and that those who publish these details are thus protected by the principles governing freedom of expression.

I should also direct you to the case of Editions Plon vs France, application number 58148/00, judgement by the European Court of Human Rights dated 18th August 2004, which concerns the publication of private health details (cancer) of politicians (Francois Mitterand). The ECHR found that freedom of expression trumps the right to privacy where politicians are concerned – and this even though the book which revealed Mitterand’s cancer was published by his personal physician, who was himself subject to the strictures of professional secrecy, making it technically a double breach of confidentiality and the right to privacy.

Yours sincerely,

Daphne Caruana Galizia
Dar Rihana
BIDNIJA