IT lawyers are concerned over arbitrary way online judgments are being removed

The Malta IT Law Association says the right to be forgotten principle is being implemented 'without clear rules'

16 March 2018, 1:39pm
by Maria Pace

2 min read

IT lawyers are "extremely concerned" on how private individuals had successfully requested their court cases be deleted from the official online database.

The Malta IT Law Association said the deletion of the judgments online was done without clear rules as to how the right to be forgotten is being exercised with respect to public registers.

The association said that it was frustrated about the comments Justice Minister Owen Bonnici made recently, which indicated he was disappointed that no debate existed in Malta on the right to be forgotten. "I made a public appeal but, unfortunately, it fell on deaf ears then," Bonnici was quoted telling The Malta Independent.

However, MITLA refuted Bonnici's claim, insisting that on 5 November 2015 it had written to the minister, indicating it was ready to discuss the right to be forgotten principle. The association published a communication it sent to the minister almost three years ago.

MITLA expressed its concerns regarding the applicability of the right to be forgotten with respect to online judgments on the basis of four legal principles which are extremely relevant in such discussions. These are the principles of transparency, legitimacy, justifiability, proportionality and necessity.

MITLA published emails it has sent to minister Owen Bonnici back in November 2015.

“The removal of personal data from an online service administered by the government and which contained public records, especially court judgments, cannot be simply compared to de-listing from a search engine,” MITLA said.

The association noted that the right to be forgotten was not an absolute right but various factors had to be taken into consideration, including whether public interest discussions come into play, against whom the request is made and the nature and purpose and importance of the personal data being erased.

MITLA said that there was nothing in the regulation which could indicate that it was intended to automatically include the possibility that court judgements and decisions might be deleted from any online database carrying court judgments within democratic Europe.

“If, similarly to Germany, there were to be a law passed by Parliament, equally applicable to all, enacted transparently following public consultation, which did not go against international obligations, and which could allow for some, if not all, criminal sentences to no longer be made available on the online court registry based on specific known and certain criteria, and only once criminal sentences had been served, and the debt to society had been fully paid, then there may be an acceptable legal basis to limit access to an online registry of a person’s criminal past,” MITLA said.

MITLA said that a national discussion should be initiated with respect to introducing laws on the rehabilitation of offenders as well as its impact on the right to be forgotten.