Newspapers call on Prime Minister to repeal right to forget powers

Independent press, Daphne Foundation, IGM and Access Info Europe demand repeal of power to courts director-general powers to delete judgements published online should immediately be repealed

A recent legal notice giving complete discretion to the director-general of the court to decide which court judgements are published online, compromises fundamental human rights and should be revoked, a number of media organisations and NGOs have urged the prime minister.

In a letter sent to Prime Minister Robert Abela, the organisations – including MaltaToday, four other newspapers and the church-owned media – 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.

Legal Notice 456 of 2021, Online Publication of Court Judgements (Data Protection) Conferment of Functions Regulations, would deny journalists and civil society the ability to research judgements.

This would 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, the organisations claimed.

“Additionally, we are alarmed by the fact that the court’s director-general is being accorded such discretionary power over publication,” the letter reads.

“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.”

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. 

The right to be forgotten referes to delisting from a commercial search engine, such as Google, in specific circumstances and cannot be compared to the removal of personal data from an online service administered by the government that contains public records, they said.

“The Court of Justice of the European Union’s balance of this right to be forgotten with the need to ensure access to information that is in the public interest serves to further emphasise this point, particularly in relation to criminal records.” 

The ECJ cites the example of “the role played by the data subject in public life, justifying a preponderant interest of the public in having access to the information”.

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

They acknowledged there could be legitimate circumstances in which a judge or magistrate may order a ban on the publication, such as names of victims in sensitive cases. 

The organisations noted 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.

“It also raises serious questions concerning the separation of powers between the judiciary and executive branches of government,” they said. “The legal notice should be revoked.”

The letter was signed by Matthew Caruana Galizia, director of The Daphne Caruana Galizia Foundation; Julian Bonnici, Editor, Lovin Malta; Neil Camilleri, Editor-in-Chief, The Malta Independent; Helen Darbishire, Founder & Director, Access Info Europe; Herman Grech, Editor-in-Chief, Times of Malta; Caroline Muscat, Founder, The Shift; Kevin Papagiorcopulo, Editor, Newsbook; Matthew Vella, Executive Editor, Malta Today; and Matthew Xuereb, President, Institute of Maltese Journalists (IĠM).