Does the Maltese civil code allow for privacy torts?

Abstract

The rapid technological progress characterising the modern world has fundamentally challenged the possibility of guaranteeing privacy, helping to highlight the importance of the concept of privacy and to make the case for greater regulation. This thesis delves into the question of whether the Maltese Civil Code can cater for the same kind of interests as are catered for by Common Law through privacy torts. A second question is whether the Maltese system in practice deals with privacy in terms of specific torts as generally found in the Common Law systems or whether the general clause in Malta retains the vitality of Continental systems. A comparative analysis of different jurisdictions consisting of Common Law, Continental Law and Mixed systems is undertaken in order to provide a solid platform for conceptualising the Maltese system. This also necessitates an additional enquiry about the influence of fundamental human rights on the different legal systems including the Maltese, to expose legal reasoning by which privacy rights can be invoked within judgments. The study commences with a focus on ‘privacy torts’ as found within Common Law systems. Subsequently, an evaluation of the Continental and ‘mixed’ jurisdictions is made because of the classification of the Maltese system as mixed. The thesis then draws upon the comparative research undertaken in order to outline different argumentative routes through which the Maltese Courts can develop protection for invasions of privacy. The conclusion is that the Maltese system lies somewhere between two distinct traditions. While no system of privacy torts exists, the Maltese Courts have occasionally been willing to compensate for certain kinds of privacy violations and have started to open the door for protection to be awarded for violations of personality rights. The need for reform of Maltese law arises, however, in order to dispel lingering doubts as to the possibility of protecting against breaches of privacy through the use of tort law.