PROFESSIONAL SECRECY ACT

PROFESSIONAL SECRECY

CHAPTER 377

PROFESSIONAL SECRECY ACT

To establish general provisions protecting professional secrecy and to make consequential

amendments to other laws.

23rd September, 1994

ACT XXIV of 1994 , as amended by Acts XVII of 1998 , XVII of 2002 , X of 2004 and III

of 2015 .

This Act may be cited as the Professional Secrecy Act.

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

information shall include references to the communication of such

information in writing, by transmission of documents or electronic

data, by signs, by negation or in any other way.

(2) References in this Act to officials or employees of the State

or to persons employed by the State include references to

(a) employees of the Government of Malta;

(b) employees of any body corporate established by law;

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

having corporate personality or not, acting as

consultant or in any other similar contractual capacity

with the Government of Malta or with a body

corporate established by law; or

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

having corporate personality or not exercising

functions as an 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 to

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) information which is described as secret by the person

communicating the information to a person falling

within the scope of article 257 of the Criminal Code;

(c) information 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 information, and

(iii) the calling, profession or office of the person

receiving the information, and of the person

giving the information, where applicable.

PROFESSIONAL SECRECY

PART II

THE DUTY OF PROFESSIONAL SECRECY

(1) The persons who, by reason of their calling, profession

or office, fall within the scope of article 257 of the Criminal Code

include the following: members of a profession regulated by the

Medical and Kindred Professions Ordinance, advocates, notaries,

legal procurators, social workers, psychologists, accountants,

auditors, employees and officers of financial and credit institutions,

trustees, officers of nominee companies or licensed nominees,

persons licensed to provide investment services under the

Investment Services Act, stockbrokers licensed under the Financial

Markets Act, insurers, insurance agents, insurance managers,

i n s u r a n c e b r o k e r s a n d i n s u r a n c e s u b - a g e n t s , o ff i c i a l s a n d

employees of the State.

(2) Subject to article 10, a person shall still remain subject to

the provisions of article 257 of the Criminal Code after he has

ceased to exercise the relevant calling or profession, or to occupy

the relevant office.

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

professional secrecy" or similar expressions shall henceforth be

interpreted, unless the context otherwise requires, as references to

the duty imposed by article 257 of the Criminal Code not to

disclose a secret covered by that article.

(1) A person shall also be deemed to have become the

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

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

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

scope of article 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 have become the

depositary of a secret by virtue of his calling, profession or office

where he obtains such secret during the course of his employment

by the State.

(3) Where a person entrusts secret information to an employee

or employer of a person falling within the scope of article 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 secret information by

virtue of a power of investigation or enquiry conferred by law or by

virtue of any enactment which requires information to be

communicated shall be deemed to have become the depositary of

such information by virtue of his calling, profession or office.

PROFESSIONAL SECRECY

PART III

EXCEPTIONS

(1) It shall be a defence to a charge of disclosing secret

information contrary to article 257 of the Criminal Code to show

that the secret information was revealed by the person charged,

only when authorised to do so by the person who entrusted him

with the information.

(2) For the purposes of subarticle (1), a person who has

received secret information from another shall not be able to give a

valid authorisation for the disclosure of that information by a third

No offence shall be committed against section 257 of the

Criminal Code or this Act by -

(a) a person disclosing in good faith secret information in

the course of and for the purpose of obtaining advice

or directions from the body regulating his profession;

(b) a person disclosing in good faith secret information to

a public authority or before a court or tribunal to the

extent that is proportionate and reasonably required for

the specific purpose of

(i) defending himself against any claim with regard

to professional work in connection with which

the secret information has been obtained by him;

or

(ii) initiating and maintaining judicial proceedings

seeking the recovery of fees or other sums due to

him or the enforcement of other lawful claims or

interests;

(c) saving the provisions of article 642(1) of the Criminal

Code or article 588(1) of the Code of Organization and

Civil Procedure, a person, who in good faith discloses

secret information to a competent public authority in

Malta in the reasonable belief that such disclosure is

reasonably necessary for the purpose of preventing,

revealing, detecting or prosecuting the commission of

acts that amount or are likely to amount to a criminal

offence, or to prevent a miscarriage of justice.

Saving the provisions of article 642(1) of the Criminal

Code and of article 588(1) of the Code of Organization and Civil

Procedure, a person shall disclose information otherwise covered

by professional secrecy when required to do so

(a) by a competent law enforcement or regulatory

authority investigating a criminal offence or a breach

of duty, or by the Security Service established by the

Security Service Act;

(b) by a magistrate in the cause and for the purposes of in

genere proceedings; and

PROFESSIONAL SECRECY

(c) by a court of criminal jurisdiction in the course of a

prosecution for a criminal offence.

(1) Unless the person who entrusted the secret information

stipulates to the contrary, he shall be deemed to have authorised the

communication of the secret information to employees, partners

and assistants of the person to whom the information was entrusted,

or to any other person falling within the scope of article 257 of the

Criminal Code, where such communication is necessary for the

performance of services requested by the person who entrusted the

information.

(2) Two or more persons falling within the scope of article 257

of the Criminal Code who exercise power of effective management

and control in a limited liability company set up for the purpose of

exercising their profession shall for the purpose of this article be

considered as partners.

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

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

information to the public authority unless there is a statutory

requirement to that effect.

Saving the provisions of article 642(1) of the Criminal

Code and of article 588(1) of the Code of Organization and Civil

Procedure, a court may authorise or make an order requiring the

disclosure of secret information pursuant to an express provision of

law for the specific purposes for which that provision was enacted,

or for the specific purpose of preventing, disclosing or detecting

the commission of acts that amount or are likely to amount to a

criminal offence

Provided that in the absence of any specific provision in

relation to any particular calling, profession or office, nothing in

this article shall be construed as modifying the existing rules of law

in relation to the courts’ power to release a witness in court

belonging to any such calling, profession or office from the duty of

professional secrecy

Provided further where the court authorises or requires such

disclosure such evidence shall be held in camera and shall only be

accessible to the court and to the parties

Provided further that nothing in this Act shall be construed

as affecting the provisions of the Code of Organization and Civil

Procedure in relation to garnishee orders.

It shall be a defence to a charge of disclosing secret

information contrary to article 257 of the Criminal Code to show

that, at the time the information was revealed, the information had

entered the public domain and had done so legitimately.

(1) It shall not be a breach of article 257 of the Criminal

Code for a person employed by the State to communicate secret

information to another person employed by the same entity or to

the Minister responsible for that entity, where such communication

is directly necessary for the carrying out of their respective

PROFESSIONAL SECRECY

functions.

(2) For the purposes of this article, the following are separate

entities

(a) any body corporate established by law;

(b) the Department of Inland Revenue;

(c) all departments or divisions of the State, to the

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

above.

PART IV

SUPPLEMENTAL PROVISIONS

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

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

communications.

Any reference in an enactment, whether passed before or

after the date of entry into force of this Act, to an obligation to

observe secrecy or confidentiality, shall be interpreted as imposing

a duty at least as strong as the duty of professional secrecy, without

prejudice to any other requirements of such enactment.

(1) No proceedings for an offence under article 257 of the

Criminal Code shall be commenced without the sanction of the

Attorney 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 of that act.