Issue link: https://maltatoday.uberflip.com/i/1441473
maltatoday | SUNDAY • 9 JANUARY 2022 10 NEWS MATTHEW VELLA MALTA'S justice ministry and its director of courts are insisting that new rules to de- lete court decisions from a public register of decisions, is bolstered by the Recital to the EU's General Data Protection Regulation. But a legal clause within the GDPR itself states that the vaunted 'right to be forgotten' does not apply to court judge- ments. With major Maltese newspa- pers, the Institute of Maltese Journalists, and the Daphne Foundation registering a let- ter of protest with the Maltese government, the right to forget policy employed by the Court Services Agency could remove a swathe of court judgements from an online register that both public and the press con- sult on a regular basis. Asked for a reaction, the Court Service CEO Eunice Fiorini said the new legal notice is backed by the GDPR's Recital 20, which allows the courts and judicial authorities to specify processing procedures on per- sonal data. "It is wrong to state that LN 456 violates article 17 of the GDPR, or that the exception to the application of Article 17 'for exercising the right of freedom of expression and information' prohibits the Court Services Agency from allowing the an- onymisation or withdrawal of a judgment from the court ser- vices website when there is no overriding public interest mil- itating against such an action," Fiorini told MaltaToday. Fiorini said the GDPR's recit- al 20 – a preamble that helps in the interpretation of the law – shows that data protection ap- plies to courts as long as it does not interfere with judicial inde- pendence. "LN 456 does not in- terfere with judicial independ- ence or with the processing of personal data by the courts act- ing in their judicial capacity in any way whatsoever." But the General Data Protec- tion Regulation itself mandates that the right to be forgotten will not apply to court judge- ments, as laid down in Article 17, which describes such pro- cessing as "carried out in the public interest or in the exer- cise of official authority vested in the controller". And in fact, court judgements are handed down and pub- lished in the exercise of the official judicial authority of the Courts. But even the Maltese Consti- tution itself, and the European Convention for Human Rights. require the publicity of judg- ments. As laid down by the European Court's (ECHR) lat- est update on Article 6 of the Convention – right to a fair trial – "The public character of proceedings protects litigants against the administration of justice in secret with no pub- lic scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administra- tion of justice visible, publicity contributes to the achievement of… a fair trial, the guarantee of which is one of the fundamen- tal principles of any democratic society." That in itself requires that court proceedings are both public as hearings, but also public by way of delivery of judgements, a principle upheld in various European human rights cases. But in addition, European case-law is replete with decla- rations that even in sensitive cases where national security is concerned, the full publicity of decisions cannot be denied. "Complete concealment from the public of the entirety of a Justice minister Edward Zammit Lewis (left) has formalised an ad hoc practice by the courts to delist court sentences from the public ecourts registry, by legal notice Courts not backing down on withdrawal of decisions despite GDPR exemption Europe's GDPR law says the right to be forgotten does not apply to court decisions, but Malta's court services agency is insisting on its right to delete court judgements from the public ecourts.gov.mt website