Issue link: https://maltatoday.uberflip.com/i/1441473
11 maltatoday | SUNDAY • 9 JANUARY 2022 NEWS judicial decision cannot be jus- tified," the European Court's guidance says. In the case Raza vs Bulgaria, the ECHR recog- nised that even where confiden- tial material that puts national security is at stake must be kept classified, "the complete con- cealment from the public of the entirety of a judicial decision in such proceedings cannot be re- garded as warranted." In this case, even in "indis- putable national security cases" such as those relating to terror- ist activities, only those parts of a judicial decision whose disclosure would compromise national security or the safe- ty of others could be justified – showing how legitimate se- curity concerns can be ac- commodated without negating fundamental procedural guar- antees, such as the publicity of judicial decisions. Even in cases where judge- ments were kept 'hidden' for more than one year before they were declassified (the Fazliysi case) – in this case due to se- curity or terror threats – the ECHR noted that no convinc- ing justification was for the fact that these judgements had not been made public for a consid- erable period of time. Up until 2020, decisions to remove judgements from the online search facility 'ecourts' were taken by an ad hoc eval- uating committee presided by the Courts' data controller (CEO), and four other members – the directors/registrars of the Criminal Courts, Civil Courts, Gozo Courts and the director of strategy and support within the justice ministry. In a reply to a MaltaToday freedom of information re- quest, the Courts Agency CEO had insisted they were adher- ing by EU Regulation 2016/679 on the protection of natural persons with regards to the processing of personal data and on the free movement of such data. But during committee meet- ings, no minutes of the meet- ings are kept as each case is discussed and decided upon during the meeting. Judgments will now be an- onymised or withdrawn from the court services website af- ter a lapse of time even though these will be publicly accessible at the Court archives. "While it is being recognised that persons involved in court cases have a right to be rehabil- itated and reintegrated into so- ciety in order to proceed with their ordinary lives, the guide- lines clearly acknowledge that an overriding public interest would stop such anonymisa- tion or withdrawal. The Con- duct Certificates Ordinance itself provides for time limits for convictions to be shown on conduct certificates," Fiorini told MaltaToday. Newspapers up in arms Both newspapers and press freedom groups have written to the Prime Minister urging him to rescind a legal notice that allows court judgements to be removed on 'right to be forgot- ten' grounds. ARTICLE 19, European Cen- tre for Press and Media Free- dom, European Federation of Journalists, Free Press Unlim- ited, International Press Insti- tute, OBC Transeuropa, and Reporters Without Borders said it was "disingenuous" to rely on the right to be forgotten to remove court judgements from the public, online regis- ter. "This principle pertains to delisting from a commercial search engine, such as Google, under specific circumstances. This cannot be compared to the removal of personal data from an online service admin- istered by the government that contains public records." They acknowledged that there may be legitimate reasons why certain judgments or parts thereof ought not to be public. One instance is to protect the rights of minors. However, they expressed con- cern with the way this legal no- tice was introduced. "The principle of publicity of court proceedings, including the verdict, as protected under European human rights law and extensively developed in the European Court of Human Rights' jurisprudence, is an es- sential means for realising the right to a fair trial and main- taining public confidence in the judiciary." The Nationalist Opposition has also filed a parliamentary motion asking for the legal no- tice to be withdrawn after sev- eral media organisations and lobby groups, including the In- stitute for Maltese Journalists, objected to the rules. Maltese newspaper editors who wrote to Robert Abela said the online publication of court judgements fulfils the Mal- tese state's Constitutional and ECHR obligation to ensure that all stages of a trial are public, including the judgment. "It also serves the public in- terest of transparency and ac- countability by delivering ac- cess to the public, including, crucially journalists and other social watchdogs, the newspa- pers said." The organisations said that although the so-called right to be forgotten – the right of era- sure of personal data – plac- es positive obligations on the State, applying this right to the online publication of court judgements was questionable. "Relying on the 'right to be forgotten' as a way to censor court judgements is unjustifia- ble," the organisations told Ab- ela. The organisations also believe that Legal Notice 456 does not include well-defined crite- ria that precisely establish in which cases the court's direc- tor-general may choose not to publish court judgements on- line. They insisted the legal notice compromises fundamental hu- man rights as it denies ordinary citizens the right to know and inhibits access to information that is in the public interest. mvella@mediatoday.com.mt GDPR Article 17 'Right to Forget', exceptions "Paragraphs 1 and 2 shall not apply to the extent that processing is necessary: for exercising the right of freedom of expression and information; for compliance with a legal obligation which requires processing by Union or Member State law to which the controller is subject or for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller; for reasons of public interest in the area of public health in accord- ance with points (h) and (i) of Article 9(2) as well as Article 9(3); for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; or for the establishment, exercise or defence of legal claims."