j'accuse

The email correspondence between Sabrina Agius and Joseph Muscat occurred between a g-mail account (Sabrina’s) and a private email account on josephmuscat.com (Joseph’s). At no point is there any correspondence from a work email address (rtk.com.mt). The most we can assume is that Sabrina accessed her gmail account during work hours using an internet connection on her workdesk at RTK’s offices and presumably via RTK’s servers. The Angela Lansbury of Maltese investigative journalism has applied a J’accuse favourite in order to reach an interesting but erroneous conclusion with regard to this correspondence:

No, it’s obvious what happened here. Occam’s Razor, remember. Organisations like the political parties and radio stations have their own internal server and don’t use an external service. The organisation or company bosses have full access to and control over anything passing through that server, because it is done on company time.

If Sabrina Agius sent and received her emails while at the office, they would have been recorded and retained by the office server. That would explain why there are apparent gaps in the information. Those would be the emails she sent and received while at home.

The second bit is obvious too, the way I see it. RTK never bothered to check through the server records to see what kinds of emails its employees sent out. But when Sabrina Agius decided to take legal action against them for not promoting her to editor, they did the first thing an employer does in these cases when preparing their case: go through her emails.

And some of those emails were made public, whether intentionally or not. Good luck to them. Most people would have done the same, faced with such contentious information about an employee making a very public case against them and talking about political discrimination. (the Runs – Mummy, they hacked me)

The impression given here is that it is normal for employers to have full access to and control over anything passing through their server. It’s not. Legally it is not. Let’s start with the recording bit. There are laws that prevent RTK from doing just that. In order to actually access the emails themselves, RTK would require the consent of the user. In certain cases, even attempting to enter an email account that is not your own is a crime – let alone actually using your facilities to open the emails. Technically RTK COULD use a device that allows “packet capture” that is the network equivalent of a phone tap but (and there is one hell of a but) it cannot do so without the consent of the employees. Consent is in fact crucial to both Data Protection law and the criminal law (here’s a hint – the Computer Misuse section of our Criminal Code).

I will not even go into the fact that the 14 page pdf containing the correspondence is very evidently a printout from a GMAIL account – not some garbled text retrieved from a server in the fashion of NCIS/CSI/Murder She Wrote Occam’s Razor fantasy. The signs seem to point more directly to someone accessing the gmail account either by obtaining Sabrina’s password and using it without her consent (see that ugly C word again) or by someone accessing her workdesk while she was away from the PC and without her knowledge (again lack of consent).

To put it simply. There is NO LEGAL WAY for RTK to have got its hands on this correspondence bar Joseph Muscat and Sabrina Agius expressly consenting to their having this information. As to the court case involving RTK and Sabrina… at most you might expect a motivated request by RTK for the court to consent a search of Sabrina’s accounts – and I doubt that a court may acquiesce to such a request simply on the basis of alleged collusion with a politician. (More about the ethics of the content in the next post).

If we eliminate RTK from the equation that leaves two possible other avenues. The first – a leak on Joseph’s side would still mean somebody accessing his account without express permission. Still illegal. Still a crime. Which leaves us with hacking. Personally, and I must say this on a hunch, I find the whole hacking business implausible -especially (and here I agree with the Angela Lansbury assessment) because I am quite sure a hacker would have found much better things to feast on.

CONCLUSION

While the nationalist media will definitely try to concentrate on the stinking content of the exchange there is no doubt that the issue of  the correspondence and how it ended up in the hands of NET TV’s news team is an important issue of itself. We cannot think of a “legal” way for this to happen particularly since it is evident that the legality must perforce involve consent of one of the two parties who are the victims of this hack/leak. Concerns about the ability of one or other political party to circumvent laws designed to protect our privacy are legitimate.

Hackgate’s first baby: Your right to conduct private conversations has been placed in manifest jeopardy. 

Note:

I am aware of the fact that I promised “a legal analysis” but only delivered legal conclusions. I had second thoughts about feeding the wannabe lawyers with the facts. feel free to look up the Data Protection Act, the Criminal Code (Computer Misuse), and subsidiary legislation. Also have a good look at the IDPC website.

A few days ago I wondered out loud (or rather on this blog) how come the Times found it so easy to accept a certain style of court reporting. In the post “When your surname’s not Bonanno” I had given the example of a court report in which it was blatantly evident that the most important part of the report was the lawyer for one of the parties and not the story itself. The lawyer in question was Dr José Herrera who also happens to be the shadow justice minister.

In that particular case, Herrera was making a point (presumably in favour of his client) about the composition and decisions of the Arbitration Tribunal. Here’s what J’accuse had to say at the time:

“Not only do we wrongly highlight the lawyer and not the party. It gets better. “The lawyer” is “outed” (surprise, surprise) as Dr Herrera – a potential justice minister in a future Labour government – and “his” case is actually challenging the constitution of a particular tribunal under our laws because its set up might violate the right to a fair hearing.

Somehow I get the feeling that the hacks at the Times received a convenient summary of the case and threw it straight into their Court section. How they do not feel “manipulated” in a Matt Bonanno sort of way just because the “feed” comes straight from a politician is uncanny. How they participate in this blurring of lines between lawyer-client relationship and political advertising without any qualms is unnerving.”

Well. We did not have to wait too long to get an answer. José Herrera writes in the Times today – “Streamlining court judgements“. His article is about reforming an aspect of the courts and he advocates (in his political capacity) the introduction of a new kind of court that he describes as a “third court of appeal”. Herrera does make a point about recent judgements about (surprise surprise) the constitutionality of the Arbitration Tribunal. Funny how the subject of the very case reported on the Times on the 13th October turns up to be crucial to an argument (a political one) being made by Herrera in his shadow ministerial capacity.Has the court reporter been fired? I wonder? Will editorial space be wasted on a Sunday reminding us of Black Friday or whatever other mumbo jumbo to distract us from the truth?

Meanwhile the Times seems to have changed its policy on court reports (since the 13th October post). Less lawyers are mentioned. I’d suggest they get a legal proofreader to work on our prospective justice minister’s articles. It’s not a Court of Cessation Josè… it’s Cassation. Seeing how it seems to be a battle cry of yours you might as well get it right.

Image: Cour de Cassation (France) the Dreyfus affair (it’s a small world)

The article in full:

Streamlining court judgements – José Herrera

As usual, I had occasion to follow first-hand the speech delivered by the Chief Justice on the occasion of the opening of the Forensic Year. The delivery proved to be motivating.

These occasions are not merely ceremonial but also, to a point, significant. It is practically only on this particular occasion that the president of the courts has the opportunity to express his opinion on pressing and important issues before holding his silence for the next 12 months, as is customary for the members of the judiciary. One of the underlying topics dealt with in his speech regarded the innovative idea of introducing a Court of Cessation.

As is well known, in Malta, unlike elsewhere, we do not have, in the strict sense of the word, a supreme court. The highest court in our country is the Court of Appeal whose members also de jure compose the Constitutional Court. There is no third court of appeal.

It must be pointed out that, until recently, no need was felt for the introduction of such a court and this due primarily to the country’s rather small population. Until a few years ago, all appeals were, as a rule, entertained by what was then the one and only appellate court. Thus, few and remote were the instances of inconsistency in the jurisprudence emanating from Malta’s top tribunal.

Over the years, however, the judiciary began to face a different reality. It is an uncontested fact that the volume of litigation in the past 30 years or so has exploded and this not merely on account of the increase in our population, which has not been so significant, but also on account of the augmentation in economic activity. For example, today, we have witnessed the registration of almost 60,000 companies owned by foreign beneficiaries.

On account of this occurrence, the need was felt to introduce two different sessions of the same court of appeal composed of different judges. As would be expected, at times this arrangement has led to conflicting judicial pronouncements and ambiguity in the law. It must be stated that a basic requisite of a fair trial is certainty of the law as was lately affirmed by our courts in the constitutional reference in the case Frank Cachia vs The Attorney General decided on February 16, 2011.

It is opportune here to refer to another landmark judgement delivered only too recently. On September 30, a case in the names of H. Vassallo & Sons Ltd vs The Attorney General et upset an important judicial notion established only a short while back by a judgement of similar impetus, this time in the names Joseph Muscat vs the Attorney General et, both judgements being delivered by the Constitutional Court.

The subject matter of the two judgements was the recurring issue of forced arbitration, that is whether this institute was in conformity with the Constitution or otherwise.

The Constitutional Court has now firmly decreed otherwise. Undoubtedly, the discrepancy between the two important judgements has left too much vagueness with regard to hundreds of cases pending before the Arbitration Centre. It must be said that, undoubtedly and logically, the most recent decision must prevail.

The Chief Justice did not propose the setting up of a permanent supreme court. Our country is simply too diminutive for the introduction of a third court of appeal. Such a move would not prove to be practical. He suggested that when a concern of national importance has to be determined or when the topic would have given rise to conflicting decisions by the Appeal Court, then the matter should be referred to a Court of Cessation. This would be a temporary court only recalled at his discretion in order to decide the legal point in question and would be composed of those three judges who would ordinarily preside over the appellate court together with two other judges each representing the two other sessions of the Appeal Court. To my mind, this suggestion made by our top judicial officer leaves much food for thought.

Though in Malta we do not strictly hold fast to the law of precedent, indisputably judgements delivered by the superior courts, especially at appellate level, do carry substantial weight and give an aura of consistency in our jurisprudence.

Lately, however, the phenomenon of conflicting judgements has become recurrent.

A case in point is the issue of the interpretation of the legal obligations emanating from chapter 104 of the Laws of Malta regarding third-party risks in insurance. Before the Criminal Court of Appeal, we now have a set of three judgements asserting the opposite of what the other three judgements have established.

This confusion has led the filing of a particular constitutional application, which is still pending before the courts.

In conclusion, I feel that the suggestions made in this respect by our top judge in this the most solemn occasion of the Forensic Year was very pertinent and that, maybe, yes, it is high time that something is done even in line with that suggested above in order to better streamline juris­prudence.

Dr Herrera is shadow justice minister.

Effin brilliant.

Here’s a snippet from tomorrow’s J’Accuse column on the Malta Independent on Sunday.

I am a strong believer in the role of the press, of books and of ideas in the functioning of a proper democracy. As John Milton wrote in his Aeropagitica “He who destroys a good book, kills reason itself”.There’s much truth in that. A nation, even a small nation such as ours needs to recognise the value of authors providing different narratives and ideas. Authors provide opportunities for reflection, they may provoke and challenge or they may charm with vignettes and pictures of our society. In any case the worst we could do is censor the truths they tell about ourselves.

The press too needs to recognise the dignified importance of its role. It needs to shed the baggage of politically manipulative impostors who have burdened and sullied its image. Local political talk seems to focus on futile accusations related to partiality and the elusive mantra of absolute impartiality. Journalism does not need eunuchs or hypocritical gurus and coaches posing as the voice of objective impartiality. It needs clear ethics, clear ideas and above all the accountability that allows it to shout “publish and be damned”. Give me a journalist with a declared bias any day rather than the sanitised pantomimes that have neutered our thinking with the extended sagas of Broadcasting Authority illusions of par conditio.