Parliament shoots down PN motion to repeal ‘right to be forgotten’ court rules

A vote by division next Wednesday is the PN’s only hope to have the legal notice repealed for good

Parliament has voted against a motion presented by Nationalist Party MPs that aimed to repeal a legal notice allowing the court to remove sentences from its public database.

While the House voted against the motion, the Nationalist Party requested a vote by division, which will take place next Wednesday.  

Monday’s parliamentary session was dedicated to discussing Legal Notice 456, which grants unfettered authority to the director-general of Malta’s law courts to erase court judgements from a public government website.

Nationalist MP Karol Aquilina opened and closed the discussion, having presented the motion himself together with party colleague Therese Comodini Cachia.

“A magistrate or judge has no right to give a sentence in secret. It must be done openly. It can’t close off its courtroom and give the sentence. Although, I know of circumstances where this might have happened,” Aquilina said in his opening statement.

He said that some decisions taken on cases involving FIAU appeals were being hidden because the law allows it. However, he said that this law conflicts with the Civil Code.

“Maybe we should reconsider how those sentences are given so as to help people in that line of work to understand their obligations and how the court interprets the law,” he suggested.

Aquilina argued that the legal notice is not in line with ‘right to be forgotten’ arguments as outlined in GDPR law. This is because the ‘right to be forgotten’ only applies to commercial search engines, and not government repositories.

He also pointed out the legal notice’s impact on free speech. “How can I exercise free speech and give my opinion on a sentence when I do not know what the sentence says?”

The courts had published guidelines to regulate the director-general’s discretion when removing or modifying judgements on the public database.

Aquilina acknowledged this, but noted that such guidelines are absent from the legal notice.

“Guidelines can be ignored, a legal notice has stronger obligations,” he said.

Justice Minister Edward Zammit Lewis brought his defence of the legal notice after Aquilina. He said that the removal or modification of court judgements has been an ongoing process that started before he became minister. The legal notice merely formalises the procedure.

“It was a process that was happening before my tenure. It was good practice, whereby people who wanted to feel included in society, who were rehabilitated, who made a mistake years ago and now wants to find work, can have a remedy that works for them,” he said.

He rebutted the idea that sentences were disappearing from the database. “In reality, this idea that sentences are disappearing, whereby the press no longer has access to it, isn’t correct. Even I would be against the legal notice if that was the case,” he said.

Other MPs from both party benches joined in the discussion. Nationalist MP Joseph Ellis pointed out that the legal notice impinges on the independence of the judiciary, as it is the executive arm of the court that is choosing whether or not to remove a sentence from the database.

“This is why I agree with having the decision to remove references to parties, like what happens in family court cases, in the hands of the judiciary, not the executive.

Meanwhile, newly co-opted government MP Andy Ellul remarked that many crimes are already removed automatically from people’s criminal record. He said that the legal notice does not necessarily strengthen the powers of the court CEO but rather serves as a remedy for citizens.

“I can’t understand how, even with guidelines in place, we are still discussing the legal notice in this matter,” he commented.

Nationalist MP Kevin Cutajar raised certain questions on the legal notice, such as what qualifies as personal data and whether the discretion is final.

“This legal notice tells us nothing. What if someone has a valid interest in appealing the removal of a sentence from the database?” he said.

Owen Bonnici, a Labour MP and former Justice Minister, emphasised that the right to be forgotten is a civil right. “Social media is a giant, but we’re a parliament. We can intervene to protect people,” he said.

He said that he understands the position of journalists, who were vehemently opposed to the legal notice due to concerns on freedom of information.

“Nothing will stop the press from publishing the information they want to publish, while making sure they are truthful in their reporting.”

He added that lawyers would still have the right to view any sentences that were removed from the online court system.

In his conclusion statement, Karol Aquilina said that there were certain principles relating to the legal notice that the two sides agreed on.

But he pointed out that the victim of any crime has a right to justice to. He finished by appealing for the Justice Minister to start a public consultation on the law, and redirected him to a particular court sentence that he said was removed from the court database.

“Satabank v FIAU. If he finds it I hope he can bring it to us and publish it,” he said.