Issue link: https://maltatoday.uberflip.com/i/972198
10 maltatoday SUNDAY 22 APRIL 2018 News THE director of the Maltese law courts is facing mounting requests from people whose names appear in court judgements, to have their records removed from the public online database. The database, created in 2000, has had 22 court decisions removed although these are not struck off the courts' records but are only removed from the publicly accessible online system. While director general Frank Mercieca says he is processing requests according to the EU's General Data Protection Regula- tion's 'right to be forgotten' clause, there is so far no clear system of making a for- mal request, with visible criteria that must be satisfied, and no public record of those cases being removed. MaltaToday won partial access to the removed decisions through a Freedom of Information request, but the courts direc- tor has refused to divulge the names of the 'right to forget' complainants. The decisions so far removed include er- rors in anonymised family court decisions, where one of the witnesses such as a do- mestic partner, is identifiable; cases where minors are mentioned; several conditional discharges; anonymised annulment cases where one party is mentioned; a case where a court verbale stated that the name of the minor, who was liberated of the charges, was not be to be published but was ignored; a case where the victim is named in the de- cision of a court of criminal appeal; and a case where the witness in a drug trafficking case is mentioned. While the court director-general, who is also data controller, tells complainants that removal of these decisions are not policy, Mercieca is employing his discretion when interpreting the "right to forget" in the GD- PR's Article 17(1)(a). This states that data subjects have the right to have any personal data erased when the data is "no longer necessary in relation to the purposes for which they are collected or processed". But it is arguable that the importance of seeing justice to be made does require the necessity that these decisions remain pub- licly available at all times, especially con- sidering that the GDPR's Article 17 (3) says that the right of erasure does not apply for exercising "the right of freedom of expres- sion and information." Need for clear standards One of the beacons for openness on digi- tal rights and laws is the Malta IT Law As- sociation, which shudders at the restrictive way in which certain regulations are being interpreted. Indeed, the MITLA rightly makes a cru- cial difference: complainants who have a grievance might have a problem with search engines like Google but potentially also a problem with the processing that is not being carried out by a public online re- pository provided by the Government that should stand as a witness of our justice sys- tem. Removal of personal data from an online service administered by Government and which contains public records, especially court judgments, cannot be simply com- pared to de-listing from a search engine," MITLA member and University of Malta lecturer in data protection law Antonio Ghio said. Additionally, the right to be forgotten is not an absolute right – data controllers such as the court's director should take into consideration whether the public interest is served by deletion or not, and the impor- tance of the personal data being erased. "The application of public interest consid- erations restricting the right to be forgot- ten is stronger when the request for erasure of public data is not being made against a search engine, or a newspaper but on the keeper of the public record," Ghio says. The concerns raised by MITLA are prob- lems that newspapers and journalists will share when faced by the courts' apparent discretion at accepting the requests. First there is the issue of transparency. It was only through PQs and freedom of in- formation requests that the public learnt of how many requests the courts' director has received for the deletion of the public online records. It lacks the semblance of a system where complainants must be identi- fiable and where the public can be informed of any such deletion. "There is no rule, policy or procedure publicly available that outlines the work- ings of how exercising one's right to be for- gotten with respect to the deletion of court decisions available on the online local court database works. Irrespective of the fact that such a rule might be right or wrong, there is surely no transparency whatsoever in such 'system'," Ghio said. As evidenced by the variety of requests accepted by the courts' director, the Erasing the right to know Removing court decisions from the Maltese public database could set a dangerous precedent without proper criteria, MATTHEW VELLA writes Ghio says complainants cannot expect to be "absolved" from the truth of their past in all occasions, especially when such availability of information is still relevant to the present and future