UN rapporteur raises privacy concerns in COVID-19 measures

The United Nations’ Special Rapporteur on the right to privacy informed the Maltese government earlier this year that certain measures introduced to mitigate the spread of COVID-19 risked “leading to infringements of fundamental human rights”, MaltaToday is informed.

In a letter dated 12 April, Maltese academic Prof. Joe Cannataci informed Malta’s Permanent Representative to the UN, Christopher Grima, that he had received information concerning allegations that Superintendent of Public Health Charmaine Gauci had introduced measures that could infringe on indidiuals’ right to privacy.

He noted that on 1 April, during a COVID-19 media briefing, Gauci had announced that she had delegated authority to the police and officers from LESA, the Armed Forces of Malta, Transport Malta, the MaltaTourism Authority and Environmental Health to enter private dwellings to ensure measures implemented during the pandemic were adhered to.

Gauci had specified that officers could only enter residences on the basis of a report or if they had reasonable suspicion that a number of people were gathering together in breach of regulations.

In his missive to Grima, Cannataci acknowledged that the law did inded grant the Superintendent the extraordinary power of entering the domestic residence of a private individual without a judicial warrant. However he noted it was extraordinary that this power could be exercised even if no public health emergency had been declared.

“Such unfettered powers, the wisdon and constitutionality of which may be in doubt, must be exercised in compliance with Malta’s existing obligations under international law, especially those which require the application of principles of necessity and proportionality,” he wrote.

“I have no doubt that the Superintendent of Public Health of Malta is attempting to fulfil her duties in very difficult circumstances and that the measures she has authorised are made in the interest of public safety, but I am also duty bound to point out that with such great power comes great responsibility.”

This responsibility, Cannataci insisted, includes ensuring that such actions a specific and explicit legal basis, through laws which also provide safeguards and remedies that ensure these actions are necessary and proportionate.

“My detailed reading of Malta’s relevant laws fails to find such safeguards, not even in the subsidiary legislation relating to COVID-19 measures,” he told Grima.

“I have carefully perused the Mandatory Standards and Guidelines published by your (Health) Ministry and I fail to find any provisions which may constitute adequate safeguards and remedies which Malta has undertaken to give in such circumstances.”

Cannataci asked the Maltese government to advise what adequate safeguards and remedies  were provided by Maltese law and to explain how they reflected Malta’s international obligations under the human rights conventions it had ratified.

He also recommended that – in the absence of such safeguards – the Superintendent of Public Health immediately retract her instructions permitting entry into private homes.

The Maltese government, in a reply sent to Cannataci on 3 June, insisted that in view of the country’s size and dense population, the spread of infectious disease posed a much higher risk than in any other country.

“This, together with a Mediterranean culture whereby the strength of family ties and friendship, together with the proximity within which everyone lives, create a higher chance of socialisation and, within these circumstances, the spread of COVID-19,” the government said.

The higher probability of private gatherings such as parties, would defy efforts made to mitigate the spread of coronavirus and to extinguish the disease, the government said, requiring an effective law to safeguard public health.

That was why the Superintendent of Public Health had been vested with certain powers which could be deemed to embrace unfettered discretion but which – in practice – are exercised in a non-arbitrary fashion. “Malta has had to balance out the right to privacy with its obligation to prevent the spread of COVID-19,” the government said. “Moreover, the state has a general duty of care and responsibility to protect those within its territory.”

The government pointed out that the Public Health Act did not actually require the making of a declaration of a public health emergency prior to the Superintendent being allowed to take action against any notifiable diseases and to issue orders accordingly – COVID-19 had been declared a notifiable disease pursuant to the Public Health Act.

As to safeguards in place under law, authorised officers to whom powers were delegated were obliged to carry out their duties in adherence with several conditions set out in the Public Health Act.

In practice, the government said, authorised officers are always accompanied by police officers and, in most cases, only seek access to a residential property when a third party report or complaint is filed.

And authorised officers always request permission to enter the property and will wait outside the property is refused. Since the legal notice was published, there have been no reported issues of forced entry.

The government said that persons who felt aggrieved by action taken by the authorised officers had several fora for complaints, including the Ombudsman’s office.

That said, following the communication by Cannataci, the Superintendent of Public Health consolidated its positions and modus operandi into a Standard Operating Procedure (SOP) setting out the manner in which enforcement of the legal notice in question was to be carried out. The SOP, government said, clarified procedures which were already adopted.