Courts not backing down on withdrawal of decisions despite GDPR exemption

Malta’s justice ministry and its director of courts are insisting that new rules to delete court decisions from a public register of decisions, is bolstered by the Recital to the EU’s General Data Protection Regulation.

But a legal clause within the GDPR itself states that the vaunted ‘right to be forgotten’ does not apply to court judgements.

With major Maltese newspapers, the Institute of Maltese Journalists, and the Daphne Foundation registering a letter of protest with the Maltese government, the right to forget policy employed by the Court Services Agency could remove a swathe of court judgements from an online register that both public and the press consult on a regular basis.

Asked for a reaction, the Court Service CEO Eunice Fiorini said the new legal notice is backed by the GDPR’s Recital 20, which allows the courts and judicial authorities to specify processing procedures on personal data.

“It is wrong to state that LN 456 violates article 17 of the GDPR, or that the exception to the application of Article 17 ‘for exercising the right of freedom of expression and information’ prohibits the Court Services Agency from allowing the anonymisation or withdrawal of a judgment from the court services website when there is no overriding public interest militating against such an action,” Fiorini told MaltaToday.

Fiorini said the GDPR’s recital 20 – a preamble that helps in the interpretation of the law – shows that data protection applies to courts as long as it does not interfere with judicial independence. “LN 456 does not interfere with judicial independence or with the processing of personal data by the courts acting in their judicial capacity in any way whatsoever.”

But the General Data Protection Regulation itself mandates that the right to be forgotten will not apply to court judgements, as laid down in Article 17, which describes such processing as “carried out in the public interest or in the exercise of official authority vested in the controller”.

And in fact, court judgements are handed down and published in the exercise of the official judicial authority of the Courts.

But even the Maltese Constitution itself, and the European Convention for Human Rights. require the publicity of judgments. As laid down by the European Court’s (ECHR) latest update on Article 6 of the Convention – right to a fair trial – “The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of… a fair trial, the guarantee of which is one of the fundamental principles of any democratic society.”

That in itself requires that court proceedings are both public as hearings, but also public by way of delivery of judgements, a principle upheld in various European human rights cases.

But in addition, European case-law is replete with declarations that even in sensitive cases where national security is concerned, the full publicity of decisions cannot be denied. “Complete concealment from the public of the entirety of a judicial decision cannot be justified,” the European Court’s guidance says. In the case Raza vs Bulgaria, the ECHR recognised that even where confidential material that puts national security is at stake must be kept classified, “the complete concealment from the public of the entirety of a judicial decision in such proceedings cannot be regarded as warranted.”

In this case, even in “indisputable national security cases” such as those relating to terrorist activities, only those parts of a judicial decision whose disclosure would compromise national security or the safety of others could be justified – showing how legitimate security concerns can be accommodated without negating fundamental procedural guarantees, such as the publicity of judicial decisions.

Even in cases where judgements were kept ‘hidden’ for more than one year before they were declassified (the Fazliysi case) – in this case due to security or terror threats – the ECHR noted that no convincing justification was for the fact that these judgements had not been made public for a considerable period of time.

Up until 2020, decisions to remove judgements from the online search facility ‘ecourts’ were taken by an ad hoc evaluating committee presided by the Courts’ data controller (CEO), and four other members – the directors/registrars of the Criminal Courts, Civil Courts, Gozo Courts and the director of strategy and support within the justice ministry.

In a reply to a MaltaToday freedom of information request, the Courts Agency CEO had insisted they were adhering by EU Regulation 2016/679 on the protection of natural persons with regards to the processing of personal data and on the free movement of such data.

But during committee meetings, no minutes of the meetings are kept as each case is discussed and decided upon during the meeting.

Judgments will now be anonymised or withdrawn from the court services website after a lapse of time even though these will be publicly accessible at the Court archives.

“While it is being recognised that persons involved in court cases have a right to be rehabilitated and reintegrated into society in order to proceed with their ordinary lives, the guidelines clearly acknowledge that an overriding public interest would stop such anonymisation or withdrawal. The Conduct Certificates Ordinance itself provides for time limits for convictions to be shown on conduct certificates,” Fiorini told MaltaToday.

Justice minister Edward Zammit Lewis (left) has formalised an ad hoc practice by the courts to delist court sentences from the public ecourts registry, by legal notice

Newspapers up in arms

Both newspapers and press freedom groups have written to the Prime Minister urging him to rescind a legal notice that allows court judgements to be removed on ‘right to be forgotten’ grounds.

ARTICLE 19, European Centre for Press and Media Freedom, European Federation of Journalists, Free Press Unlimited, International Press Institute, OBC Transeuropa, and Reporters Without Borders said it was “disingenuous” to rely on the right to be forgotten to remove court judgements from the public, online register.

“This principle pertains to delisting from a commercial search engine, such as Google, under specific circumstances. This cannot be compared to the removal of personal data from an online service administered by the government that contains public records.”

They acknowledged that there may be legitimate reasons why certain judgments or parts thereof ought not to be public. One instance is to protect the rights of minors.

However, they expressed concern with the way this legal notice was introduced.

“The principle of publicity of court proceedings, including the verdict, as protected under European human rights law and extensively developed in the European Court of Human Rights’ jurisprudence, is an essential means for realising the right to a fair trial and maintaining public confidence in the judiciary.”

The Nationalist Opposition has also filed a parliamentary motion asking for the legal notice to be withdrawn after several media organisations and lobby groups, including the Institute for Maltese Journalists, objected to the rules.

Maltese newspaper editors who wrote to Robert Abela said the online publication of court judgements fulfils the Maltese state’s Constitutional and ECHR obligation to ensure that all stages of a trial are public, including the judgment.

“It also serves the public interest of transparency and accountability by delivering access to the public, including, crucially journalists and other social watchdogs, the newspapers said.”

The organisations said that although the so-called right to be forgotten – the right of erasure of personal data – places positive obligations on the State, applying this right to the online publication of court judgements was questionable.

“Relying on the ‘right to be forgotten’ as a way to censor court judgements is unjustifiable,” the organisations told Abela.

The organisations also believe that Legal Notice 456 does not include well-defined criteria that precisely establish in which cases the court’s director-general may choose not to publish court judgements online.

They insisted the legal notice compromises fundamental human rights as it denies ordinary citizens the right to know and inhibits access to information that is in the public interest.

Article 17: ‘Right to Forget’, exceptions

“Paragraphs 1 and 2 shall not apply to the extent that processing is necessary:

for exercising the right of freedom of expression and information;

for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller;

for reasons of public interest in the area of public health in accordance with points (h) and (i) of Article 9(2) as well as Article 9(3);

for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; or for the establishment, exercise or defence of legal claims.”