The Malta Independent 17 December 2018, Monday

Someone will commit perjury in this case’ – lawyer says in FKK Acapulco libel proceedings

Kevin Schembri Orland Thursday, 18 May 2017, 15:36 Last update: about 3 years ago

Dr Joe Zammit Maempel, representing blogger Daphne Caruana Galizia, stressing the importance of preserving the requested phone records said that someone in the FKK Acapulco libel proceedings will commit perjury.

Both parties were delivering their verbal submissions before Magistrate Francesco Depasquale on the request by Daphne Caruana Galizia to preserve the TAP3 files of Minister Chris Cardona and consultant Joe Gerada’s phones relating to the date they allegedly visited a brothel in Germany. While lawyers representing the minister have described this a fishing expedition, Dr Zammit Maempel said that his client has said she has an eyewitness.

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TAP3 files include timestamps of calls made and SMSs sent, location area codes of where phone calls, SMS were made or data was used, the cell tower ID of the network of the foreign operator service is transferred to when travelling abroad, and other such information. The request explains that the TAP3 file is only stored for six months.

Dr Zammit Maempel said that the fact both sides are contesting what the other has to say, is the very reason why the TAP file should be preserved.

Dr Zammit Maempel argued that this should be preserved and later down the line they could discuss the admissibility of this evidence. “This is indisputable scientific proof. The versions of the two persons in this case clash. This proof will 100% show who is lying. Someone will commit perjury in this case.”

Lawyers representing Minister Cardona however, objected to this request. Minister Chris Cardona says he remained in Essen Germany during his trip, where he was attending the Stakeholder Forum organised by the European Commission. The minister insists that he never went to FKK Acapulco in Velbert, a distance of 20 km away from Essen.

Dr Antonio Ghio, representing Daphne Caruana Galizia, delivered his verbal submissions on the issue, explaining that the merits of the case are based on fair comment regarding factual truth, which resulted in a civil issue between two persons, a journalist and a Maltese Minister, as well as his consultant.

The application was filed by the exponents not for permission for the evidence to be moved forward, but so that the court orders the service provider to hold onto this data.

While lawyers Paul Lia and the Mark Vassallo (representing the Minister and his consultant) argued that Dr Ghio and Dr Joseph Zammit Maempel were trying to change court procedure, they argued otherwise.

“All we are asking for is the urgent intervention of the court so that the best evidence that exists is not lost,” Dr Ghio said.

Dr Ghio argued that his client will present her evidence at the opportune time, however said that the other parties also need to prevent their evidence that they were not at the location on the date and time specified in the article, in order to prove that the comments made by his client were not fair comment.

He mentioned the number of garnishee orders brought against his client, and were accepted, and stressed that Minister Cardona and his consultant should have been the ones to request this evidence in the first place, to substantiate their statements that they had not gone to FKK Acapulco.

Dr Ghio stressed that this is not a fishing expedition, explaining that a fishing expedition can only occur when a party in the case does not have evidence to present and is trying to find evidence. In this case, he said, the applicant knows that the evidence exists, and is requesting the court o intervene for it to not be lost. He mentioned that an eye witness exists, who saw the two men in the brothel. “The TAP3 file is objective scientific evidence that corroborates one version or the other.”

Dr Ghio quoted from Article 9e of the Data Protection Act: where personal data may only be processed if “processing is necessary for the performance of an activity that is carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data is disclosed.” He said that in this case, there was an activity in the public interest. Dr Ghio stressed that the Minister was in Germany on Ministerial duties, and the consultant held the position of EU Policy Officer.

He then quoted article 9f from the same law. “Personal data may be processed if processing is necessary for a purpose that concerns a legitimate interest of the controller or of such a third party to whom personal data is provided, except where such interest is overridden by the interest to protect the fundamental rights and freedoms of the data subject and in particular the right to privacy.” Dr Ghio highlighted that this article speaks about legitimate interest of third parties or the court itself, stating that there exists an element of necessity for the data in the TAP file to be processed.

Dr Ghio also argued that the TAP files are considered as “traffic data,” and said that traffic data may be given to competent authorities for the purpose of any law relating to the settling of disputes.

Dr Paul Lia attacked the idea of calling Daphne Caruana Galizia a journalist, saying that doing such damages serious journalists.

He said that she insults people and incites hatred. “She is not a journalist, she is a person who has a political aim. Her political aim is not reached like honest politicians on both sides of the spectrum, but through lies, inventions, insults and hatred.”

Dr Lia argued that there is no public interest scope in what she had written, that gives the court a right to remove fundamental rights of individuals in this case. “She chose to make certain allegations which we say have nothing to do with his public life.” Dr Lia then needed a short break before continuing his submissions.

While denying claims that his client visited a brothel, Dr Lia explained that his client was abroad on an official visit, adding that he in no way failed in his official function. He also stressed that the rest, such as what the minister ate, or when he slept, or whether he saw a football match or not are irrelevant, and do not affect his public function.

Dr Lia also spoke of the importance of defending an individual’s privacy. “We need to defend privacy, for all of us. It cannot be that people say whatever they want on social media, attacking someone’s character, family etc, as if it is ok.”

“I believe this case can create an ugly precedent for everyone, as everyone has a sphere of private life and nobody has right to go into it.”

He stressed that a balance must be reached between the right to information, and privacy, adding that privacy must only be cast aside when in the public interest and when the law lays down such instances.

He stressed that if Daphne Caruana Galizia has evidence, then she would not need the TAP3 files.

Dr Lia stressed that in a civil case, the court has no rights other than to regulate the case through procedure. The court, he said, does not have the right to order proof from one side or another. “We are not in a criminal court where the magistrate has certain powers.” He said that in proceedings like this, the court is just a referee, regulating penalties, whistling for fouls and off-sides, but does not shoot the ball.

Quoting relevant law, he said that such personal data can only be taken in certain instances, such as when it is in the interest of public safety, or economic well-being, or in the prevention of serious crimes. He said that where crimes were not serious enough, such intrusions of privacy have resulted in rights being breached.

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