Issue link: https://maltatoday.uberflip.com/i/969423
8 News maltatoday SUNDAY 15 APRIL 2018 Court director green-lighting most 'right to forget' requests Not found: a court document requested from the online system was removed for the public – not to have ready access to it MATTHEW VELLA 22 judgements have been re- moved from the online system of court decisions, on the basis of 'right to forget' requests made to the director general for Maltese courts. The information was released on a Freedom of Information re- quest by this newspaper. Ever since a warranted lawyer had a conditional discharge re- moved from the online courts system that gives the public ac- cess to court records, it was re- vealed that justice minister Owen Bonnici had grated the courts di- rector discretion on requests for the removal of judgements. Up until 9 April 2018, there have been 43 requests for remov- al of judgements from the online system. However, these are not removed from the Court's data- base. "When there is a request for the removal of a judgement from the online system, this doesn't mean that the judgement is removed from the Court's database," the laws courts' data controller told MaltaToday in the FOIA reply. "In fact the legal profession still has access to civil judgements through the LECAM system. With regards to criminal cases, work is being carried out this year so that these will also be ac- cessible to the legal profession through the LECAM system, ir- respective of the fact as to wheth- er they are found on the online system. This process has been ongoing since summer 2017 and it expected to be completed later this year." Of the 43 submitted requests, 22 judgements were removed from the online system, and there was one request where the judgement was not removed from the online system while the remaining re- quests are still being evaluated. The law courts' data control- ler said he would not release the actual judgements to the press since this would run counter "to the essence of the principle of the right to be forgotten as enshrined in Article 17 of EU Data Protec- tion Regulation". The minister for justice granted the law courts' director-general permission to "use his discretion" on requests by people to have court judgements removed from the public database online. The practice had been going on for some time on the database that since 2001 has published all judgements by the civil and crim- inal courts. "When I became minister, I in- structed Frank Mercieca to use his discretion and decide wheth- er to accept requests from people who wished to have their record of criminal sentences deleted. This in respect to the right to be forgotten," Bonnici said. Worryingly, he has admitted there are no written criteria with regard to such requests. "I just have confidence in Mr Mercieca's discretion and it is up to him to decide if a court sentence should be deleted or not from the database," the minister said. The ministry is being taken to task after two law graduates were given a warrant to practise their profession despite having earned conditional discharges on theft charges. The two students; Yanica Bar- bara, 28 of Attard, and Thomas Sant, 30 of Qormi, were given conditional discharges in late 2009 and mid-2010 respectively after being found guilty of theft a few years back. The Association of Judges and Magistrates said the two students had been "condition- ally discharged and, at law, such a decision is not a conviction", which means the charge does not get included in a criminal record in Malta, and nothing prevents the two graduates from being granted a warrant to practise law. But it has emerged that while Sant's judgement could still be retrieved from the public justice database, Barbara's was removed after accepting her request to strike off the judgement from the database that dates back to 2001. Bonnici said the law student had made her request to court regis- trar Frank Mercieca who obliged. He also told The Times that Barbara's was not an isolated case as the same happened with regard to other individuals who complained about negative con- sequences resulting from their court judgment being available online. "The court registrar felt that enough time had passed," Bon- nici said. Former Nationalist justice minister Chris Said expressed disbelief at the decision, saying "this has never even crossed our minds". Through their lawyer, John Bonello, Barbara and Sant said that "the conditional discharge they were awarded eight years ago is of no consequence to their application for admission to the Bar of Malta… Stating that a sus- pended imprisonment sentence had been meted is totally un- called for and indeed unfair and prejudicial." PAUL COCKS THE supremacy of EU law over the national laws of member states is the major reason why Malta would not be able to pre- clude foreign libel judgements from being enforced in Malta. Last week, the government voted down an amendment to prevent SLAPP lawsuits from being upheld by Maltese courts, saying it was impossible to pre- vent an EU court decision from being enforced. Justice Minister Owen Bonnici said the government's decision was based on legal advice ob- tained from Attorney General Peter Grech, private interna- tional law expert Paul Cachia, human rights expert Ian Refalo and British law firm Bird & Bird, who all agreed that the amend- ments proposed would have violated the obligation of EU member states as set out in the Lugano Convention, to recog- nise sentences handed down in other member states. A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defence until they abandon their criticism or opposition. The tactic is employed by rich organisations that use the threat of expensive lawsuits in foreign courts to force news organisa- tions to cave in to pressure, and was recently used by the private bank Pilatus as well as citizen- ship experts Henley & Partners. The amendments sought to clearly identify the Maltese Courts as the only ones with the right to hear and determine pro- ceedings for libel and defama- tion in respect of any publica- tion made by persons normally resident, based or operating in Malta. But the legal experts agreed that the SLAPP amendment would have allowed Maltese journalists to ignore defamation claims brought against them in EU courts, and that a foreign company operating in Malta would have been able to ignore any claims for libel or defama- tion against it in other countries. It is arguable that plaintiffs can bring defamation cases against Maltese newspapers wherever they feel the defamation has oc- curred: potentially a rich plain- tiff can file multiple libel cases in each of the 28 member states, decisions that could be enforce- able by a Maltese court where a civil claim is justified. "The courts of Malta will be obliged to disregard the pro- posed amendments if they are in conflict with EU regulations which impose clear and uncon- ditional obligations on member states," the experts said. The experts, however, say that the Court of Justice of the EU has already addressed the threat of libel tourism, in the "Svensk Handel" decision, which found that this provision is said to pro- vide journalists and publications some protection from SLAPP lawsuits. A claimant, therefore, argu- ably could only file a lawsuit for libel or defamation against a Maltese journalist in Malta or in the country where the claimant is based, and not in another ju- risdiction which would be more advantageous for him. "A potential claimant is not free, for example, to choose to initiate proceedings in the juris- diction which is most advanta- geous for him or most inconven- ient for the defendant; rather he must start proceedings either in the member state in which the defendant is domiciled or in the member state in which the claimant has his centre of inter- est," Bird & Bird LLP said. Lawyer Paul Cachia said that in the case of non-EU courts, there was no reason to believe that a Maltese court would not protect a Maltese defendant resident and domiciled in Mal- ta, when sued for defamation with intent to intimidate or si- lence them, since this is already contrary to public policy as laid down in Maltese law – provided that journalists do not respond to the summons from an Ameri- can court! pcocks@mediatoday.com.mt SLAPP lawsuits from the US? Don't open the lawyer's letter… In the case of alleged defamatory content published on the internet, a claimant is not entitled to file a lawsuit in every member state where the content could be accessed