The 'Right to be Forgotten' was enshrined in EU law in 2014. If requested, this law lays down 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.' In this sense, it is imperative to clearly distinguish between de-listing from a search engine and the removal of personal data from an online service administered by the government that contains public records, especially court judgements.

The right to be forgotten is being applied in Malta within the criminal justice system. Malta's Justice Minister refers all decisions on the right to be forgotten to the Chief Executive of the Court Services Agency. This has caused some controversy, as the Chief Executive is not part of the judiciary but rather a public servant who serves politicians.

The discovery was made in March 2018 after a case in which judges granted two law students permission to practise law despite their criminal records. Journalists were unable to retrieve the original criminal sentence of one of the law students from the courts' publicly available database. Prior to that episode, no debate existed in Malta about the right to be forgotten.

The right to be forgotten is not an absolute right but has to take into consideration various factors as listed in the Guidelines on the Application of Legal Notice 456 of 2021 regarding the Online Publication of Court Judgments (Data Protection) Conferment of Functions, including, but not limited to, whether public interest discussions come into play, against whom the request is made, and the nature, purpose, and importance of the personal data being erased.

Up until May 2019, a total of 176 requests for court judgments to be removed from the public domain had been filed. Out of those, 112 judgments were made anonymous, meaning that the personal details of individuals were removed. Consequently, it will always be pertinent to ponder whether the removal of these judgements and future judgments from the public domain is in breach of the right to information.

In fact, the right to be forgotten can be widely applied in criminal justice: litigants and court participants, including the convicted criminal, the victim, the acquitted defendant, and the witnesses, all have a legitimate interest in claiming the right. However, such claims from the subjects of information could conflict with rights and legal interests such as the public's right to know, freedom of speech and the press, and public security.

To resolve these conflicts, limits should be imposed on the scope of the subject of the right, applicable cases, and ways and procedures of exercise so that the right can be legitimately practised in criminal justice. Malta's established criteria for applying the right to be forgotten with respect to court judgements are the reason for the request, the time that has elapsed since the date of judgement, and the negative effects on other citizens.

The public's right to know is the foundation of democratic governance. Based on the right, relevant subjects have the duty to disclose information to natural persons, legal persons, and other social organisations, namely the duty of information disclosure. The public's right to know and the consequent information disclosure system may, however, become obstacles for the data subject to exercise their right to be forgotten in criminal justice.

On the one hand, the convicted criminal, the victim and other litigants need to avoid becoming "involuntary public figures" by exercising their right to be forgotten, while on the other, the public needs to know the facts of criminal cases.

In terms of the subject of the right, public figures who are convicted criminals should be restricted from exercising the right to be forgotten. It is inappropriate for public figures with higher social positions to enjoy the same right to be forgotten as ordinary citizens. In the spotlight of the press and public attention, public figures have low expectations of the right to privacy and understand that their offence may cause massive concern.

Therefore, allowing the same degree of right to be forgotten for them could impair public supervision, especially for political public figures, to ensure the legitimate exercise of their power. On the other hand, since to err is human, public figures may be limitedly and conditionally entitled to the right to be forgotten, which exempts them from the negative impact of their past wrongdoings. Moreover, news coverage of public convictions and sentences of offenders who are public figures can be educational for citizens.

To be specific, when the data subject requests the judicial authorities to remove relevant information regarding the criminal case, the request should be reviewed by the court. When the data subject requests the press or network operators to remove relevant information and is rejected, he or she should be allowed to file a suit or a court order against the subject of the obligation.

Second, in terms of conditions of exercise, for the offender in the aforementioned criminal cases, such as crimes against national security, terrorist crimes, sex crimes, and major corruption and bribery, the court should either prescribe in the conviction that the offender has no right to request sealing or removal of the criminal data or provide the minimum period of time and conditions to approve the request, so as to limit or deprive the offender's right to be forgotten.

Dr Mark Said is a lawyer