The ‘right to forget’ must be balanced with the ‘right to know’

Along with various other media houses and NGOs – including the Daphne Foundation; Lovin Malta; The Malta Independent; Access Info Europe; The Times of Malta; The Shift; Newsbook; and the Institute of Maltese Journalists (IĠM) – MaltaToday this week co-signed a letter to Prime Minister Robert Abela, expressing serious concerns with recent legislation that may impinge on fundamental human rights. 

The amendment in question is Legal Notice 456 of 2021: which would deny journalists and the general public the ability to research all past court judgements online, by giving the courts director unfettered power to delete them if so requested. 

The legal notice enshrines a practice which was already in force, in the most irregular of policies, claiming it chimed in with the ‘right to be forgotten’ originally included in the EU’s General Data Protection Regulation (GDPR). 

However, the ‘personal data’ referred to in GDPR does not extend specifically court judgments: and with very good reason. For court judgments cannot be treated in the same way as data arising from a newspaper article, a blog-post, or a social media website.  

In any democratic country, the rulings handed down by law courts do not attest merely to the verdict of any one specific case; collectively, they also enshrine the all-important principle that: ‘Justice must be done; and SEEN to be done.’ 

As University IT law lecturer Antonio Ghio aptly put it in 2018: “Removal of personal data from an online service administered by Government, and which contains public records, especially court judgments, cannot be simply compared to de-listing from a search engine.” 

This brings us to the problem with Legal Notice 456. In 2018, MaltaToday revealed that 22 such rulings had already been removed; and while the problem does not necessarily concern any of those particular cases – all of which were broadly aligned with all the usual reasons for a court ban on the publications of names – the fact remains that the director of the Maltese law-courts has hitherto enjoyed full discretion to process such requests, without any form of transparency or accountability whatsoever. 

Even Justice Minister Edward Zammit Lewis, in his reaction to our letter, admitted that: “this was already a practice, as people wrote to court agency, and according to principles, the Court decided whether to remove one’s name or not from the website. We are simply defending those that maybe made a mistake 20 years ago and now are applying for a job…” 

But while that may even be the government’s intention, in reality Legal Notice 456 does nothing but cement the status quo, by providing a legal framework for the Court Director to continue unilaterally deciding such requests: alone, and with no discernible criteria, or established procedure, to justify the final decision. 

One does not need to even doubt the integrity of the present Court Director, to understand that such a situation could easily give rise to suspicion. The Chamber of Advocates, for instance, declared “we have full faith in [the director]. The issue in fact is not one of the person, but rather of a system that is misconceived, lacks proper checks and balances, and above all a regulation that is devoid of the detail required to enable people to understand exactly what their rights are, and the principles that should guide the Director General in making certain determinations.” 

Moreover – as pointed out in our joint letter – “the fact that the director-general is appointed by, and answers directly to the Justice Ministry, also raises concerns of conflicts of interest and the independence of the role, and questions regarding the effective separation of powers, specifically, of the judiciary and the executive, which is an essential underpinning of democracy.” 

This in turn cast doubts on Malta’s commitment to transparency, particularly in the wake of the FATF’s greylisting, which obliged the country to step up its control over dubious behaviour. 

For as reasonably argued by Josef Said, CEO of Konnekt Ltd: “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.” 

Above all, however, Legal Notice 456 also compromises fundamental human rights, as it denies ordinary citizens the right to know and inhibits access to information that is in the public interest: as, by definition, are all court judgments. 

And this, ultimately, is why virtually all of Malta’s media landscape has converged on a single demand: that “the legal notice should be revoked.”