ACT No. XX IV of 1994 A TT Nru . XXIV tI' 1·1994 liti min- (iiiid)

Supplimvll tol·GQlUt/(J tol-GYern (Q ' Ma/ra, Nrw. 16,008, 11 (Q ' Sdtl'mbrn, 1994

Taqsima A

MAlTA

ACT No. XX IV of 1994

A TT Nru . XXIV tI' 1·1994

liti min-

by

tbe

ATI m,brut b'

AN

AGr

eDl(;te<l

Parlameotla' Milia.

Parliament of Malta.

AlT hbiex jaghmei dispo1izz-

AN

ACT 10 eslabli.h generll

provisioD' protectiDg profes-

jODijiel ieuerali

dWIf il-

sioDal secrecy IDd 10 mate

protczzjoni

tU-lCfJctezza

coosequCDlial ameDdments to

profCUJODlli 11 sabiex JIghmel

r

other Ilw •.

emClldi

kOIl.epenzj ali

litijiet OML

A86S

ATT DWAR IS-SEORb,EZZA PROFESSJONALI

Arr'lIgament ta' Artikoli

Ar1iko!u

T AQSIMA I • PRELIMINARI

Titolu fil-qosor u bid u fis-scbb

Ac t, 1994.

(2) This Act shall come into f~ on such dale as the

Minister responsible for finance may by notice in the Gazelle

appoinT..

( I) Any reference in this Act to the revealing of

infonnalion shall include references 10 the communication of such

info rmation in writing, by lfaIlsmission of documents or electronic

dara, by signs. by negation o r in any other way.

(2) References in this Act to offICials or employees of

the Stale or to persons employed by the Stale include references

(a)

employees of the Government of MallS.;

(b) employees of any body corpomle established by

law

(c) any person, whether an individual or not, whether

having corporate personal ity or not, acting as consultant or

in any other s.imilar contractual capacity with the

Governme nt of Malta or with a body corporate: esTablished

by law; or

(d) any person whether an individual or not, whether

having corporate personality or nOI exc:rcising functions as

Ill) official or representative of the: Government of Malta or

of any body corporate established by law.

(3) "Professional secret" or "secret" in this Act refers

10 information which falls under any of the following categories

(a) information which is to be considered secret

under a specific provision of any law;

(b) informati on which is described as secret by the

person communicati ng the information to a person falling

within the scope of section 257 of the Criminal Code;

(c) infonnati on which has

reasonably

to

be

considered as secret in view of -

(i) the circumstances in which the

information has been communicated and

received. and

(ii)

the nature of the infonnation, and

(i ii ) the calling, profession or office of

the person receiving the infonnat ion, and

of the person giving the illformalion,

whcre app licable.

PART U - THE DUTY OF PROFESSIONAL SECRECY

(1) The persons who, by reason of their caliing.

profession Of office, fall within the scope of section 257 of the

Criminal Code include the following: members of a profession

regulated by the Medical and Kindred ProCessions Ordinance,

advocates, notaries, legal procurators, accountants, auditors,

employees and officers of fmaocial and credit institutions,

tnlstees, officers of nominee companies or licensed nominees,

persons liccnsM to provide investment services under the

Investment Services Att, 1994. stockbrokers licensed under the

Malta Stock Exchange Act, insurefS, insurance agents. insurance

brokers, officials and employees of the State.

(2) Subject to section 10 of this Act, a person shall still

remain subject 10 the provisions of section 257 of the Criminal

Code after he has ceased 10 cllcrcise the relevant calling or

profession, or to occupy the relevant office.

(3) References in statutory cnactments to "the duty of

professional SCCiu.."Y" or similar expressions shall henceforth be

interprelCd, unless the context otherwise requires. as referern::es to

the duly imposed by section 257 of the Criminal Code nOI to Cap. 9

disclose a secret covered by that section.

(I) A perliOn shall also be deemed to have become the

depositary of a secret by reason of his calling. profession or office

when be obtains such secret by reason of being an employee, or

employer, a partner or assistant. of a person who falls within the

scope of section 257 of the Criminal Code or by reason of having

acted as interpreter or translator in the communication of such

secret.

(2) A person shall also be deemed to ha"e become

the depositary of a secret by virtue of ttis caJling, profession or

office where he obtains such secret during the course of his

employment by the Stale.

(3) Where a person entrusts secret informati on to an

employee or employer of a person falling within the scope of

section 257 of the Criminal Code by reason of such employee's

relationship with his employer, such secret information shall be

deemed to have been entrusted to the employer through the

employee or to the employee through the employer, as the case

may be, as mandatory.

Any person who receives or acquires sCCld information

by virtue of a power of investigation or enquiry confel'l'ed by Jaw

or by virtue of any enactment which requires infonnatioo 10 be

communicated shall be deemed to have become the depositary of

such information by vinue of his ramng, professioo o r office.

PART m - EXCEPTIONS

6 . ( I ) It shall be a defence 10 a charge of disclosing

secret infonnation contrary to section 257 of the Criminal Code

to show that the secret infonnation was revealed by the persdn

charged. only when authorised 10 do so by the person who

entrusted him with the informatio n.

(2) For the purposes of subsection (I). a person who

has received secret infonnation from another shall nOI be able 10

give a valid authorisation for the disclosure of that information by

a third party.

i.

( I) Unless the person who entrusted the secret

information stipu lates to the contrary. he shall be deemed to have

authorised the communication of the secret infonnation 10

employees, panners and assistants of the person to whom the

mformation was entrusted, or to any other person fal ling within

the scope of section 257 of the Criminal Code. where such

comm unication is necessary for the performance of scrnces

req uested by the person who entrusted the information.

(2) Two o r more persons falling within the scope of

section 257 o f the Criminal Code who exercise powe r of effective

management and control in a limited liability company set up for

the purpose of exercising their profession shall for the purpose o f

this section be considered as partners.

Awtorizunjoni 1; wiebedjilotef

Komunih njoni mcbticga lil impjeglti etC.

For the purposes of section 257 of the Criminal Code, a

pelWn shall not be deemed to be compelled by law to give

infonnation to the public authority unless there is an express

statutory requirement to that effect.

A cou rt may authorise o r make an orde r requ iring the

disclosure of secret information pursuant (0 an express provision

of law for the specific purposes for which that provision was

enacted

Provided thaI in the absence oC any specific provision ill

relation to any panicular calling. proCession or office. nothing i'I

this section shall be construed as modifying the ex isting rules of

law in relation to the courts' power to release a witness in court

belonging to any such calling. profession Of office from the duty

or proressionallCCiocy;

Provided further where the court authorises or rt:quires

such disclosure such evidence shall be held in camera and shall

only be accessible to the coun and to the panics;

Provided further that nothing in the Act sha1l be

construed as affc:ctirag the provisions of the Code or Organization

and Civil Pl ocedure in relation to gamishee orders.

It shaU be a defence to a charge of disclosing secret

inrormalion eontrary 10 seaioo 257 of the Criminal Code to show

that. 81: the time the infonnatioo was revealed. the information had

enlcred the public domain and had done so legitimately.

11 , ( I) It shall not be I breach or sedioo 257 of the

Criminal Code for I person employed by the State 10

communicale secrel infonnation to another person employed by

the same entity or to the Minister responsibie for that entity,

where such communication is directly ~cssary for the carrying

out oC their respective functions .

(2) for the purposes of this section, the following ate

separate entities

<a) any body corporate established by law;

the Department oC Inland Revenue;

(b)

(c) all departments or divisions oC the State. 10

the exclusion of the entities in paragraphs (a) and (b)

above.

PART IV - SUPPLEMENTAL PROVISIONS

TAQSIl\.iA IV . PROVVEDIMENll SUPPLEMENTARl

Nothing in this Act shall restrict or limit, or be deemed

10 restrict or limit, the laws or custom on the protection of

privileged communicatiOns.

A

Any reference in an enactment, whether passed before ~r.m\C.eI ill

or after the date of entry into force of this Act, to an obligation to O\hIIr eoM:lmOnla,

observe secrecy or confidentiality, shall be interpreted as

imposing a dUly al least as strong as the dut), of professional

secrecy. withou t prejudice to any other requirements of such

enactment.

(I) No proceedings for an offence under section 257 Criminal

o f the Criminal Code shall be commenced witho ut the sanction of procwlinp.

the Anomey General.

(2) When the act committed by an offender constitutes

a more serious offence under any other law, the provisions of that

other law shall apply in respect oflhat act.

Section 257 of the Criminal Code shall be substituted

with the (ollowing

257. If any person. who by reason of his

calling. profession or office, becorrv:.s the

depositary of any secret confided in him, shall,

e1tcept when compelled by law to give

information to a public authority, disclose such

secret. he shall on conviction be liaI»e to a fine

(mlllla) nOl exceeding 20.000 Maltese liri o r to

imprisonment (or a tenn not exceeding two

years or to both sueh fine and imprisonment.".

Passed by the: House of Representalives at Sitting No. 303 of the 20th Jul y, 1994

LAWRENCE GONZI

Speaur

RICHARD J. CAUCHI

Clerk to the House 0/ Represtnlotil·er.

Prioot lOt -

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