The Malta Independent 12 November 2019, Tuesday

IT Law Association extremely concerned over court judgements being deleted from online database

Friday, 16 March 2018, 14:28 Last update: about 3 years ago

The Malta IT Law Association (MITLA) has said that it is "extremely concerned" about recent reports that private individuals have successfully requested that court cases decided against them be deleted from online court databases, "without having in place clear rules as to how the right to be forgotten is being exercised with respect to public registers."

MITLA is particularly frustrated by the fact that Minister Owen Bonnici has stated in the Malta Independent today that: "Three years ago I was somewhat disappointed that no debate existed in Malta about the right to be forgotten. While in foreign jurisdiction extensive debates took place on the impact of the processing of personal data on the World Wide Web and the effects of search facilities, here there was absolute no debate at all. I made a public appeal but, unfortunately, it fell on deaf ears then."

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"Removal of personal data from an online service administered by Government and which contains public records, especially court judgments, cannot be simply compared to delisting from a search engine. In this light, the applicable jurisprudence of the European Courts should be Manni (C-398/15) and not (C-131/12) as the latter refers to de-listing whilst the former refers to removal of personal data from a public record. MITLA notes that the right to be forgotten is not an absolute right but has to take into consideration various factors, included but not limited to whether public interest discussions come into play, but also against whom the request is made and the nature and purpose and importance of the personal data being erased."

"The application of public interest considerations restricting the right to be forgotten are stronger when the request for erasure of pubic data is not being made against a search engine, or a newspaper but on the keeper of the public record. This has not only been confirmed by European Court Judgements."

MITLA expressed its current concerns regarding the applicability of the right to be forgotten with respect to online judgments on the basis of four legal principles: Transparency, Legitimacy, Justifiability, necessity.

"There is no rule, policy or procedure publicly available that outlines the possibility of exercising one's right to be forgotten with respect to the deletion of court decisions available on the online local court database. The legal community is not aware of the existence of any prerequisites stating unequivocally the circumstances in which this right might be successfully claimed vis-à- vis the court's website; or the parameters against which such a request will be measured or decided. There is no transparency whatsoever in the 'system', a fact which is furthermore corroborated by the Minister of Justice who is quoted as saying that he has left this matter at the discretion and in the hands of a single person whose job description under the Code of Civil Procedure does not include such quasi-judicial, administrative powers, and whose credentials for such a task have not, so far, been stated, let alone established in a transparent manner."

MITLA said that while the right to be forgotten will certainly be developed further by the imminent applicability of the EU's General Data Protection Regulation from the end of May, there is "nothing in this regulation (or Art 29 Working Party Documents) which can persuade that it is intended to automatically include, in its purview, the possibility that court judgements and decisions might at any point in time be deleted from any online database carrying court judgements..."

"However it is submitted that if, similarly to Germany, there were to be a law passed by Parliament equally applicable to all, enacted transparently following public consultation, which did not go against international obligations and could allow for some, if not all, criminal sentences to no longer be made available on the online court registry based on specific known criteria once criminal sentences had been served... then there may be an acceptable legal basis to limit access to an online registry of a person's criminal past."

"However, the German model cannot be completely followed as it is based on constitutionally entrenched principles of informational self-determination and the right to personality found in the German Constitution and subsequently reflected in specific laws relating to the rehabilitation of offenders. Unfortunately, a bill presented in 2014 proposing the introduction of such concepts, including informational self-determination, in the Maltese Constitution was never discussed by Parliament."

The full letter can be read here.

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