Laws need to catch up with digital technological advancements - lawyer

In the last week of March, a private sex video allegedly taken from someone’s phone, went viral, raising many ethical questions regarding both Malta’s legal perspective to the action in question, as well as the public’s reaction to, and aggravation of, th

Developments in technology are moving at a much faster pace than the developments in the legislative progress, according to Criminal Lawyer Dr Roberto Montalto.

For this reason, there are many situations involving digital technology, (such as applications like Whatsapp or Facebook), where a case would be judged in line with a seemingly outdated law, when compared to the novelty of the technology involved in the case.

Dr Montalto explained this in an exclusive interview with The

Malta Independent, where legal topics were discussed in relation to the sex video which went viral at the end of last month.

The lawyer noted that advancements in social media, applications and other digital technology, makes it easier to “reach hundreds, thousands and millions at the press of a button,” facilitating the commission of a crime, whilst making it “harder to detect”.

Errors in the legislature come in the form of, for example, the interpretation of the words ‘public place’, when judging a cybercrime case where places are virtual, therefore interpretations can vary.

Due to this situation, Dr Montalto expressed his belief that the police cyber-crime unit should always be given a lot of support by having the right resources. “No matter how well-manned the cyber-crime unit is though, it is very difficult to curb situations,” said Dr Montalto, “in my opinion situations such as these are close to impossible to prevent”.

“If a pornographic video were on a VHS cassette tape, and someone were to make tangible copies of it and spread it around, then that would be the same crime as an online video being circulated on the web,” Dr Montalto explained. “We can only call the latter a cybercrime because of the medium used to assist this circulation.”

A cybercrime refers to any crime which can happen in the normal modes of life, however, in the case of cybercrime, a computer-like device is involved.

Dr Montalto explained that when a device is entrusted into the hands of third parties with unauthorized access to data, the situation could fall under a breach of the ‘computer misuse’ law in the criminal code, which is when the use of the device is not in line with the device’s purposes.

The law has recently been introduced to Malta’s criminal code, and penalties are considered “very harsh.” He explained that current the law sets a general provision which can be extended at will, and accommodates various situations.

Moreover, with the nature of the virtual world in mind, terms in Maltese law, such as the term ‘public place’ when describing the illegalities of pornographic distribution, becomes debatable when deciding what is public and private in regards to applications and social networks such as Whatsapp or Facebook.

Is a Whatsapp group conversation with several members private? Is a post on Facebook which can be viewed only by your Facebook friends considered a virtual ‘public place’? These terms “are all subject to interpretation which would require the court test,” said Dr Montalto, “developments in technology are moving at a much faster pace than the developments in the legislative progress”.

In Malta’s Criminal Code, reference is made not only to ‘pornography’ but also to ‘indecent’ material, which, according to Dr Montalto, makes the distinction between the two “more blurred.”

“It is very subjective because the circumstance around the same fact may alter the interpretation of the fact, and that makes it subjective and creates further problems,” he said. Keeping in mind the terms of right of an accused person, Dr Montalto explained that, “an accused person has the right to know exactly what is and what is not a crime, and what is the exact definition of the law, in order for a fair trial. If the interpretation is subjective then it may vary, for example, if you have a conservative or a liberal judge.”

When the video went viral, many people viewed it as entertainment, whilst others, including Prime Minister Joseph Muscat, condemned those who found it amusing and further circulated the video. Besides the concern of ethics, when asked whether there is some form in criminality in the act of a person receiving the video and further sharing it with his or her friends, Dr Montalto expressed that he does not believe this to be the case.

When asked what could be done in order to prevent situations like these from occurring, Dr Montalto suggested that resources for the Cyber Crime Unit should always be bettered. “But no matter how well-manned the cybercrime unit is, it is very difficult to curb a lot of cases, and they can only be dealt with once they have occurred,” said Dr Montalto. “In my opinion it is close to impossible to prevent”. Nonetheless, Dr Montalto said he feels that cybercrime unit should be given a lot of importance, seeing as “technology is moving at a quick pace and we need to catch up”.

Other than prevention, Dr Montalto states his belief that, in any given case of such situations “the judiciary, in the case that it is finding guilt, should proliferate judgement and impose punishment which reflect the damage which is caused in such situations.”

“Putting aside the criminal issue,” he goes on to say, “from a civil perspective, people’s lives must be affected (in such circumstances), some may even say ruined. Bear in mind that in the Maltese legal system moral damages, including pain and suffering, are not considered. That is already quite an aggravating factor.”

“When somebody is suing for physical damage, you cannot just sue for pain and suffering, which is automatic in jurisdictions like the UK. You can only sue for actual financial loss and loss of future earning,” Dr Montalto explained. “Like in the case of permanent disability following traffic accidents, there’s a percentage disability where one can calculate loss of future earnings, so it’s always objective and tangible, it’s always related to income,” he continued.

The law is moving in the right direction, according to the lawyer. “Amendments have been discussed and proposed and I believe they are in the pipeline, whereby our courts will be allowed to assess and impose moral damages.”

As the situation is now, loss of future earnings can be based on a physical disability which is of a psychological nature. So if someone is psychologically affected by the act or an omission of a person, the effect of the act where he suffers from a mental illness which is permanent, that is material, there have been situations. “But moral damages per se, going through the ordeal, the suffering that one goes through in instances like this, that is currently not considered in court but the legislative movement is going in that direction,” he confirms.

Dr Montalto noted that advancements in social media, applications and other digital technology, makes it easier to “reach hundreds, thousands and millions at the press of a button,” facilitating the commission of a crime, whilst making it “harder to detect”. Questioning where the line is drawn between ‘acceptable’ and ‘criminal’ for acts such as online stalking, harassment and bullying, Dr Montalto explained that these acts, such as stalking, harassment and bullying are all very subjective. “All such cases must be considered in such cases of one case to the other,” he said.

Amendments have been discussed and proposed and I believe they are in the pipeline, whereby our courts will be allowed to assess and impose moral damages