Courts deleting public judgements through unfettered power by legal notice

Malta’s director-general of law courts has been granted unfettered authority to erase court judgements from a public government website, without any specific criteria laid down at law.

Despite no ‘right to forget’ law being implemented in Malta, the justice ministry issued a legal notice that formally grants the CEO of the Court Services Agency to “determine whether a person has valid grounds to exercise the right of erasure of personal data in respect of the content of a court judgment published online.”

The right of erasure of personal data from a court judgmement shall be given effect either by anonymising the judgment or any part thereof, or by removing the judgment from the website entirely.

The courts director now has the  discretion  in deciding upon an application for the exercise of the right of erasure of personal data from a court judgment published on the website of the Court Services Agency.

MaltaToday has previously protested personally with this pratice with both the former director-general of the courts, and the former minister for justice.

The ‘Right to be Forgotten’ was enshrined in EU law in 2014. If requested, this law dictates that search engines and other directories (such as court judgements) must delete any links to information on an individual, as long as it is ‘inaccurate, inadequate, irrelevant or excessive.’ This ‘delisting’ prevents material from being found through search engines like Google.

Erasing the right to know: Maltese courts applying restrictive interpretation of privacy rules

Dangerous precedent

Critics of the ‘right’ include human resources firm Konnekt’s CEO Josef Said: “The price paid is the erosion of collective memory. It is generally in the common interest for information to be freely available. While some people might find their lives blighted by unfair online distortion, many of those who request to be forgotten have something nefarious to hide. I believe that I should be able to search for, and find fraudsters, crooked business people and criminals.”

In 2018, MaltaToday obtained a list of 22 judgements removed from the online courts system in a freedom of information request.

Ever since a warranted lawyer had a conditional discharge removed from the online courts system, it was revealed that former minister Owen Bonnici had granted the courts director discretion on requests for the removal of judgements.

The two students, Yanica Barbara, 28 of Attard, and Thomas Sant, 30 of Qormi, were given conditional discharges in late 2009 and mid-2010 respectively after being found guilty of theft a few years back.

The Association of Judges and Magistrates said the two students had been “conditionally discharged and, at law, such a decision is not a conviction”, which means the charge does not get included in a criminal record in Malta, and nothing prevents the two graduates from being granted a warrant to practise law.

Barbara’s 2010 sentence was removed after the court’s DG accepted her request to strike off the judgement from the database.

The Malta IT Law Association has previously said that the removal of personal data from an online service administered by the government and which contains public records, especially court judgments, cannot be simply compared to de-listing from a search engine.

“Additionally, the right to be forgotten is not an absolute right – data controllers such as the court’s director should take into consideration whether the public interest is served by deletion or not, and the importance of the personal data being erased,” lawyer Antonio Ghio had told MaltaToday.

“The application of public interest considerations restricting the right to be forgotten is stronger when the request for erasure of public data is not being made against a search engine, or a newspaper but on the keeper of the public record.”

The legal notice issued by justice minister Edward Zammit Lewis carries no rules, policy or procedure publicly available that outlines the way someone exercises the right to be forgotten.

MITLA says complainants cannot expect to be “absolved” from the truth of their past in all occasions, especially when such availability of information is still relevant to the present and future, whether as individuals or as society at large, especially when one considers that position that certain people, including public officers have.

“Without specific rules, the right to be forgotten cannot be used as a blank cheque to re-write our (personal) history, especially when crimes, which affect the whole of society, are involved. If we start on this dangerous route, will we continue to erase other, more heinous crimes, simply because it is not fair for one’s criminal history to follow one for the rest of one’s life? Where would the fairness and justice in that be for the victims of that crime?  Where would that leave society at large?” Ghio asked.