Media and NGOs call for revocation of legal notice enabling censorship of Court judgements

02 December 2021

Seven media organisations, the Institute of Maltese Journalists, Access Info Europe, and the Daphne Caruana Galizia Foundation have written to Malta’s Prime Minister urging the revocation of Legal Notice 456 of 2021, Online Publication of Court Judgements (Data Protection) Conferment of Functions Regulations which gives complete discretion to the director-general of the court to decide which court judgements are published online. The letter says that the legal notice compromises fundamental human rights as it denies ordinary citizens the right to know and inhibits access to information that is in the public interest, and that it raises questions about the effective separation of powers of the judiciary and the executive, given that the Court’s director-general is appointed by and answers directly to the Justice Ministry and is being accorded discretionary power over publication.

The letter points out that online publication of court judgements fulfils Malta’s Constitutional and ECHR obligation to ensure that all stages of a trial are public, including the judgment. Publication also serves the public interest of transparency and accountability, delivering access to the public, including journalists and other social watchdogs. At a time when FATF’s greylisting has obliged Malta to step up its control over dubious behaviour, government is denying journalists and civil society the ability to properly research judgments, casting doubt on its commitment to transparency.

The right of erasure of personal data (also known as ‘the right to be forgotten’) places positive obligations on the State. However, the signatories’ view is that applying this right to the online publication of court judgements is questionable. The right to be forgotten pertains to delisting from a commercial search engine, such as Google, in specific circumstances. This cannot be compared to the removal of personal data from an online service that contains public records and which is administered by the state.

Moreover, Article 17(3) GDPR provides as follows: “[The right to be forgotten] shall not apply to the extent that processing is necessary: […] (b) […] in the exercise of official authority [e.g. courts handing down judgements qua judicial authorities].”

The Court of Justice of the European Union (CJEU) balances the right to be forgotten with the need to ensure access to information that is in the public interest, further emphasising this point, particularly in relation to criminal records. The CJEU cites the example of “the role played by the data subject in public life, justifying a preponderant interest of the public in having access to the information”. Relying on the ‘right to be forgotten’ as a way to censor court judgements is unjustifiable.

“Complete concealment from the public of the entirety of a judicial decision cannot be justified.” (Raza v. Bulgaria; Fazliyski v. Bulgaria).” Source: Guide on Article 6 of the European Convention on Human Rights: Right to a fair trial (criminal limb).

The signatories acknowledge that there are legitimate circumstances in which a judge or magistrate may order a ban on the publication, such as names of victims in sensitive cases, but that Legal Notice 456 does not include well-defined criteria that precisely establish in which cases the court’s director-general may choose not to publish court judgements online.

The letter was signed by:

  • Matthew Xuereb, President, Institute of Maltese Journalists (IĠM)
  • Matthew Vella, Executive Editor, Malta Today
  • Kevin Papagiorcopulo, Editor, Newsbook
  • Caroline Muscat, Founder, The Shift
  • Herman Grech, Editor-in-Chief, Times of Malta
  • Helen Darbishire, Founder & Director, Access Info Europe
  • Neil Camilleri, Editor-in-Chief, The Malta Independent
  • Julian Bonnici, Editor, Lovin Malta
  • Karl Gouder, Chief Operations Officer, Media.Link Communications
  • Matthew Caruana Galizia, Director, The Daphne Caruana Galizia Foundation