Power to courts director to delete public judgements ‘misconceived’, lawyers say

Malta’s Chamber of Advocates has called a system allow the courts director to delete court judgements from the public record, “a system that is misconceived”.

Earning the rebuke of Malta’s major newspapers, Malta’s director-general of the law courts was 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.”

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

“The Chamber has no issue with the director-general… indeed we have full faith in her. 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,” Chamber president Louis De Gabriele said.

De Gabriele said the legal notice simply assumed that an individual has a right to have personal data removed from an online, publicly accessible website, without however determining when that right is exercisable.

The regulation even fails to give any form of guidance of how this discretion is to be utilised by the courts director; but the Chamber did suggest it could agree with that data being removed after the lapse of several years, or which type of judgements should be subject to this right. “These are all substantive matters that go to create the balance between the general interests of society as against the individual right to privacy of the personal data.”

De Gabriele said the grant of complete and unfettered power to one person, whoever that person is, without any form of checks and balances “is certainly not an example of good governance, and it will only create more disputes for people whose requests are declined and who would challenge the administrative discretion of the Director General in making certain determinations.”

Newspapers write to PM

In a letter sent to Prime Minister Robert Abela, newspapers and press freedom NGOs – including MaltaToday, four other newspapers and the church-owned media – and the Daphne Foundation, said that 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.

“We are alarmed by the fact that the court’s director-general is being accorded such discretionary power over publication…

“The director-general is appointed by and answers directly to the Justice Ministry, raising 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.”