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A decision to forget

Either Justice Minister Owen Bonnici is wrong or the government official website is misleading the public.

It has emerged, quite by coincidence, that when he became minister, in 2013, Dr Bonnici told the director general at the courts of justice to use his discretion and decide whether to accept requests by people wishing to have their record of criminal sentences deleted. According to the minister, this was connected to the ‘right to be forgotten’.

But from the government website, one will learn that the ‘Judgments Online’ service “brings together a collection of judgments given by the Courts of Justice of Malta from 1944 onwards” and includes an archive with all judgments handed down since January 1, 2001.

The website does carry a rider: “If the court official fails to save the judgment for whatever reason, as a consequence this judgment will not be visible on the net.”

But nowhere does it appear that a judgment – given post-2001 – may not be listed because the courts’ director general so decides. More importantly, it does not mention the correct procedure to be followed in such instances. It would, therefore, appear that the delisting of online judgments resulted from a personal ‘arrangement’ between the minister and the director general.

Bottom line is we can now forget about online judgments being a pedagogical aid for professionals and students. Thanks to Dr Bonnici’s unilateral administrative decision, anyone can just ask the director general of the courts – not a registrar, who acts under the direction of the courts, but the person whose line relationship is to the minister – to simply erase a judgment from the online archive. No policy announcement, no rules, no reference to the member of the judiciary who delivered the judgment.

The dean of the Faculty of Laws at the University of Malta, Kevin Aquilina, had a point when he said that if the minister wanted to give citizens a right, it should have been done through the enactment of proper legislation not administratively.

And data protection law expert Antonio Ghio makes a clear distinction between the removal of data from a search engine and erasing information from a public source, such as the online court registry.

It appears nobody consulted the Data Protection Act and the EU’s General Data Protection Regulation.

It would also have helped had one looked into, say, the 2007 case of a company director who wanted the Lecce Chamber of Commerce to erase details contained in a company register. The European Court of Justice ruled that member states cannot guarantee that people whose data are included in the company register have the right to obtain the erasure of such data, even after the lapse of a specified period of time from the dissolution of a company.

A more recent relevant case is that of a businessman who took Google to the High Court in London, challenging its decision not to remove from search results a criminal conviction dating back to the 1990s. This is being considered as a landmark case with regard to ‘the right to be forgotten’.

An administrative decision that is not backed by law is null and void, especially if made ultra vires. A lawyer by profession, Dr Bonnici should have known better.

This is a Times of Malta print editorial

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