ACT No. XXXIII of 2021 AN ACT to amend various laws relating to communications and to make provision with respect to matters ancillary thereto or connected therewith.

I assent.

(L.S.)

GEORGE VELLA

President

18th June, 2021

ACT No. XXXIII of 2021

AN ACT to amend various laws relating to communications and to

make provision with respect to matters ancillary thereto or connected

therewith.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows

(1) The short title of this Act is the Communications Laws

commencement.

(Amendment) Act, 2021.

(2) This Act shall come into force on such date as the Minister

responsible for communications may by notice in the Gazette appoint,

and different dates may be so appointed for different provisions and

different purposes of this Act.

PART I

AMENDMENTS TO THE MALTA COMMUNICATIONS

AUTHORITY ACT

(1) This Part amends the Malta Communications Authority Amendments to

Act and it shall be read and construed as one with the Malta the

Communica-

Communications Authority Act, hereinafter in this Part referred to as tions

Act.

"the principal Act".

(2) This Part shall come into force on such date as the Minister

responsible for communications may by notice in the Gazette appoint,

and different dates may be so appointed for different provisions and

different purposes thereof.

Article 2 of the principal Act shall be amended as follows

Amendment of

article 2 of the

principal Act.

(a) immediately after the definition "Minister" there

shall be added the following new definition

" "online interface" means any software, including a

website, part of a website or an application, that is operated

by or on behalf of an undertaking, and which serves to give

end-users access to the goods or services provided by that

undertaking;";

(b) immediately after the definition "end-user" there

shall be added the following new definition

" "European Commission" means the Commission of

the European Union;";

(c) immediately

after

the

definition

"harmful

interference" there shall be added the following new definition

" "member", unless the context otherwise requires,

includes the Chairman of the Authority;"; and

(d) immediately after the definition "Chairman" there

shall be added the following new definition

Civil Court" means the Civil Court

(Commercial Section) established by article 3

" S.L. 12.19 of the Civil Courts (Establishment of Section)

Order;".

Sub-article (3) of article 4 of the principal Act shall be Amendment of

article 4 of the

amended as follows

principal Act.

(a)

in paragraph (a) thereof the words "any matter

regulated by or under this Act" shall be substituted by the words

"any matter regulated by or under this Act or any other law

which the Authority is entitled to enforce"; and

(b) in paragraph (j) thereof the words "establish the

minimum qualifications" shall be substituted by the words

"establish guidelines for the minimum qualifications".

Article 5 of the principal Act shall be substituted by the

following

5. (1) Subject to the other provisions of this

Act, the affairs and business of the Authority shall be

the responsibility of the Board, but save as aforesaid,

the day-to-day administration and organisation of the

Authority, and the administrative control of its officers

and employees shall be the responsibility of the Chief

Executive Officer of the Authority who shall also have

such o ther powers as may f rom time to time be

delegated to him by the Board

Provided that the Chief Executive Officer shall

be appointed by the Board according to set criteria

following a call for applications. Any such

appointment shall be for a period of three years, which

appointment may be extended for further periods of

three years each.

(2) Without prejudice to sub-article (1), the

Authority shall exercise any one or more of its functions

through the Chief Executive Officer or any of its officers

or employees or through a public authority or agency,

however so described, authorized for that purpose, or

through a contractor or other person with whom an

agreement for the performance of any one or more of

such functions has been entered into

Provided that nothing in this sub-article shall

authorize the Authority to contract out or delegate any

of

(a) its regulatory functions; or

(b) its authorization functions, unless

such functions are expressly delegated to a public

authority established by law. The First Schedule

to this Act shall state by name the public

authority to whom such authorization functions

are delegated and the type of authorization in

relation to which such authorization functions are

delegated. The Authority may, from time to time,

after approval in writing by the Minister, by order

in the Gazette amend the First Schedule

Provided further that the Minister,

before giving his approval, shall, where

appropriate, consult with such other Minister as

may be responsible for the public authority to

whom such authorization functions are to be

delegated.

(3) The Authority shall have adequate technical,

financial and human resources to carry out its functions

under this Act and under any other applicable laws which

the Authority is entitled to enforce. It shall have the

autonomy in the implementation of its budget in

accordance with applicable legislation, which budget

shall be made public.

(4) The Chief Executive Officer shall attend all the

meetings of the Board but shall not vote at such

meetings.

(5) The Chief Executive Officer shall be

responsible for the implementation of the objectives of

the Authority in the exercise of its functions at law, as set

out by the Board, and without prejudice to the generality

of the foregoing he shall

(a) have full responsibility for the overall

administration, supervision and control of the

various components, however so described,

making up the Authority;

(b) develop the necessary strategies for the

implementation of the objectives of the Authority

and implement such strategies as directed by the

Board;

(c) advise the Board on any matter it may

refer to him or any matter he considers necessary

or expedient;

(d) perform such other duties as the Board

may assign to him from time to time; and

(e) at the end of each financial year,

present estimates of the income and expenditure of

the Authority for the following financial year to the

Board for its approval.

(6) The appointment of the Chief Executive Officer

shall be on a full-time basis and shall be made in

accordance with the applicable provisions of this Act

Provided that no member of the Board may be

appointed as the Chief Executive Officer whilst he is a

member of the Board.".

Article 29 of the principal Act shall be amended as follows

(a) immediately after paragraph (g) of sub-article (1)

thereof there shall be added the following new paragraph

"(h) purchase goods or services as test purchases,

where necessary, under a cover identity, in order to detect

infringements of any provisions of this Act or of any other

law which the Authority is empowered to enforce, or of

any decision taken by the Authority, and to obtain

evidence, including the power to inspect, observe, study,

dissemble or test goods or services;";

(b) in sub-article (2) thereof the words "shall if requested

by any person thereby affected, produce to that person for

inspection a certificate issued by the Authority stating that he is

duly authorised to act for and on behalf of the Authority." shall

be substituted by the words "shall produce for inspection by any

person thereby affected, an identification document issued by the

Authority which also states that he is duly authorised to act for

and on behalf of the Authority."; and

(c) in sub-article (5) thereof the words "twelve thousand

euro (€12,000)" shall be substituted by the words "twenty-five

thousand euro (€25,000)".

After sub-article (8) of article 32 of the principal Act there

shall be added the following new sub-article

"(9) Without prejudice to any proceedings that the

Authority may take under this Part, the Authority may, at any

time prior to its final decision relating to imposition of any

sanctions consequential to such proceedings, at its sole

discretion, seek or accept any written commitments from any

person responsible for any infringement of any law or decision

which the Authority is entitled to enforce

Provided that in doing so the Authority may impose

any such conditions as it may consider appropriate in the

circumstances and shall in all instances act in a transparent, non-

discriminatory and objective manner.".

Immediately after article 32 of the principal Act there shall be Addition of new

article to the

added the following new article

principal Act.

" Orders to

(1) If notwithstanding the various

remove content

enforcement powers provided for under this Part,

on online

there are no other effective means available to

interface etc.

bring about the cessation or the prohibition of the

infringement of any law or of any decision which

the Authority is entitled to enforce, the Authority

may, in order to avoid the risk of serious harm to

the collective interests of end-users, apply to the

Civil Court for a court order requiring

(a) any person to remove content

and to restrict access to an online interface

or to order the explicit display of a warning

to end-users when they access an online

interface;

(b) a hosting service provider to

remove, disable or restrict access to an

online interface; or

(c)

where appropriate, domain

registries or registrars to delete a fully

qualified domain name and to allow the

competent national entity responsible for

the registration of such domain name to

register it.

(2) The court, on receipt of an application

under sub-article (1), shall order the notification

of the application with urgency onto the person

against whom the court order is being requested,

which person shall be entitled to reply to the

application within such period as the court may

determine, which period shall not exceed ten (10)

days or any lesser period as the court may deem

appropriate in the circumstances, which period

shall commence as from the date of notification

Provided that the court shall consider

a n d d e t e r m i n e a n y su c h a p p l i c a t i o n w i t h

urgency

Provided further that without prejudice

to the above, the provisions of the Code of

Organization and Civil Procedure for the hearing

and determination of cases and of any appeal

therefrom shall apply to any such action

Provided further that from the decree of

the Civil Court there shall be a right of appeal to

the Court of Appeal on a point of law.

(3) Any person who fails to comply with an

order issued in accordance with sub-article (1)

shall be liable to a civil fine imposed by the Civil

Court of not less than one thousand euro (€1,000)

and not more than twenty-five thousand euro

(€25,000) and, or to a daily fine of not less than

fifty euro (€50) and not more than five hundred

euro (€500) for each day of non-compliance,

which fine or fines if imposed shall constitute a

civil debt payable to the Authority in accordance

with article 49.".

Immediately after article 33 of the principal Act there shall be

9. added the following new article

" Publication of

The Authority may publish any final

final decisions,

decision that has been taken by it under this

commitments or

Part, and, or any commitments given by a

orders.

person in accordance with article 32 on its

website and such other means of

communication as it may consider

appropriate. In doing so the Authority may,

where applicable, publish the identity of the

person responsible for the infringement in

relation to the final decision that has been

taken.".

10. In the marginal note to article 39 of the principal Act the

words "Appeals Board" shall be substituted by the words

"Administrative Review Tribunal".

Article 40A of the principal Act shall be deleted.

11.

12. In sub-article (2) of article 42 of the principal Act the words

"Provided further that the Tribunal in determining any such

application" shall be substituted by the words "Provided further that

the Tribunal or the Court of Appeal, as the case may be, in determining

any such application".

13. In article 45 of the principal Act the words "the members of Amendment of

article 45 of the

the advisory committees" shall be deleted.

principal Act.

14. In sub-article (1) of article 49 of the principal Act the words Amendment of

"the Chairman or an officer of the Authority" shall be substituted by article

principal Act.

the words "the Chairman, the Chief Executive Officer or an officer of

the Authority".

PART II

AMENDMENTS OF THE ELECTRONIC COMMERCE ACT

15. (1) This Part amends the Electronic Commerce Act and it Amendments of

shall be read and construed as one with the Electronic Commerce Act, the

Commerce Act.

hereinafter in this Part referred to as "the principal Act".

(2) This Part shall come into force on such date as the Minister

responsible for communications may by notice in the Gazette appoint

and different dates may be so appointed for different provisions and

different purposes thereof.

16. In sub-article (1) of article 4 of the principal Act the words Amendment of

article 4 of the

"and of the Regulation" shall be deleted.

principal Act.

17. In article 8F of the principal Act the words "Subject to the Amendment of

provisions of article 8G, the provision of information society services" article

principal Act.

shall be substituted by the words "The provision of information society

services".

Articles 8G and 8H of the principal Act shall be deleted.

18. Deletion of

articles 8G and

8H of the

principal Act.

19. Sub-article (1) of article 9 of the principal Act shall be Amendment of

article 9 of the

substituted by the following

principal Act.

"(1) An electronic contract shall not be denied legal

effect, validity or enforceability solely on the grounds that it is

wholly or partly in electronic form, or has been entered into

wholly or partly by way of electronic communications or

otherwise

Provided that the provisions of this article shall not

apply in relation to the contracts or laws, however so described,

listed in the Eighth Schedule to this Act

Provided further that the Minister may, after

consulting the competent regulator, by notice in the Gazette

amend the Eighth Schedule.".

20. Immediately after sub-article (2) of article 23A of the

principal Act there shall be added the following new sub-article

"(3) The competent regulator may, in the performance of

its supervisory tasks as stated in the Regulation, determine any

such technical and, or operational requirements as it may

consider necessary for the effective implementation and, or

compliance with any of the provisions of the Regulation

Provided that in doing so the competent regulator

shall first consult with any interested parties.".

21. In article 24 of the principal Act the words "articles 20, 22 and

23 of the Act" shall be substituted by the words "articles 22 and 23 of

22. The proviso to article 25(1)(f) of the principal Act shall be

amended as follows

(a) sub-paragraph (i) thereof shall be deleted and sub-

paragraphs (ii), (iii) and (iv) thereof shall be renumbered as sub-

paragraphs (i), (ii) and (iii) respectively; and

(b) sub-paragraph (i) thereof as renumbered shall be

substituted by the following

"(i) any administrative fine provided for by

regulations made under this article shall not exceed the

amount of one hundred and twenty-five thousand euro

(€125,000) for each breach and two thousand and five

hundred euro (€2,500) for each day during which failure to

observe the provisions of any regulation made thereunder

persists;".

23. The Fifth Schedule to the principal Act shall be amended as

(a) paragraph (b) thereof shall be substituted by the

following

"(b) matters in relation to information society

services covered by any laws relating to data protection

and, or privacy;";

(b) in paragraph (c) thereof the words "practices

governed by competition laws;" shall be substituted by the words

"practices governed by competition laws; and";

(c)

paragraph (d) thereof shall be amended by the

following

(i)

sub-paragraph (i) thereof shall be deleted;

(ii) sub-paragraphs (ii) and (iii) thereof shall be

renumbered as sub-paragraphs (i) and (ii); and

(iii) in sub-paragraph (ii) thereof, as renumbered, the

words "including lotteries and betting transactions;" shall be

substituted by the words "including lotteries and betting

transactions."; and

(d)

paragraphs (e) to (k) thereof shall be deleted.

24. Immediately after the Seventh Schedule to the principal Act Addition of new

Schedule to the

there shall be added the following new schedule

principal Act.

"EIGHTH SCHEDULE

(Article 9)

Contracts or laws to which article 9 does not apply

(a) contracts that create or transfer

rights

over

immovable property other than leasing rights;

(b) contracts of suretyship granted and on collateral

security furnished by persons acting for purposes outside their

trade, business or profession;

(c) the law governing the creation, execution,

amendment, variation or revocation of a will or any other

testamentary instrument or a trust;

(d) any law governing the making of an affidavit or a

solemn declaration, or requiring or permitting the use of one for

any purpose;

(e) the rules, practices or procedures of a court or

tribunal however so described;

(f) any law relating to the giving of evidence in criminal

proceedings; or

(g)

any contracts governed by family law.".

Passed by the House of Representatives at Sitting No. 473 of the

14th June, 2021.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€1.08