Hot off the press, a new regulation that gives the chief civil servant in the court building the power and the authority to decide whether a court judgement is kept on or taken off the online database. This is a new set of regulations published without any announcement or fanfare in the last 24 hours.
The issue first came up in March 2018. A lot has happened since so allow me to refresh your memory. Two law graduates were controversially granted warrants to practice law by a committee of judges that overlooked the fact that the new lawyers had a prior conviction for an offence that was punishable with prison. The news had caused a stir when Times of Malta reported the incident.
The logical thing to do when the story broke was to look at the record of their case to check for any mitigating circumstances in their story that would have justified a departure from the rules that people with a record of offences punishable with prison are not allowed to practice law. But when The Shift News searched the publicly available online database of court decisions, their case could not be found.
When the justice minister at the time was questioned about this, Owen Bonnici, the one, admitted instructing the court registrar to remove the decision concerning these two people. Another 9 cases were also deleted from the record on the back of what Owen Bonnici called “the right to be forgotten”.
The “right to be forgotten” or the “right to erasure” exists under EU law. Citizens have the right to ask someone managing data to remove anything which appears online that might be a breach of their privacy. Let’s apply the principle to search engines like Google. Citizens have a right to ask Google to disable links to (to ‘de-list’) websites that may be called up in a search that would violate that citizen’s privacy. If Google refuses, citizens have the right to appeal to their local data protection agency.
Let’s say someone illegally acquires a copy of my medical records and pastes them on a website put up anonymously, a bit like the spoof website that made our summer. I would have the right to ask Google to make sure that website does not come up when someone keys in my name in their search engine. I would also have the ability to enforce the same right against the website which would have put the data online in the first place.
Now a different example. I don’t know, someone writes an article that criticises me and makes me look like a fool. You know that happens. I do not have a right to ask Google to force its clients to forget that about me. I have no right to have criticism of me forgotten. That would not be a matter of privacy. It would be an attempt to undermine citizens’ right to know what they have an inherent and constitutional right to know.
Owen Bonnici’s reference to “the right to be forgotten” for his decision to remove some court decisions from the online record and leave others there was complete rubbish. There was no legal basis for this. It was a secretive and discriminatory decision intended to help out his friends.
The government has now sought to fix the problem of a complete lack of legal basis by publishing a 5-paragraph law that says that the court registrar has the power to decide which court decisions are to be published in their entirety, which ones are to be redacted, and which ones are to be removed altogether.
Just because they say they can, does not mean they can. If all it takes for the government to confer itself a power it should not have, is for it to publish a legal notice that says it has that power, they can publish a legal notice that says they can deny redheads medical treatment. Or they could publish regulations that would empower some Alex Dalli to exercise his discretion when handing down punishment in prison, without any guidance on what sort of punishment would be proportionate to what sort of infraction.
This is the key provision in the new regulations:
The Director General (Courts) shall, subject to the provisions of the Data Protection Act, have the function and power to determine whether a person has valid grounds to exercise the right of erasure of personal data in respect of the content of a court judgment published online on the website of the Court Services Agency.
If therefore such a thing as a right to have a court judgement published online about you removed does exist, the first question to be asked is why are the decisions about anyone published at all? The presumption of the right of erasure should mean that there need be nothing to erase in the first place and, if anything, one can decide to publish a court decision that concerns them themselves.
If then, it is up to the person concerned to decide whether they would want to exercise their right not to have an online record of a decision about them in the criminal court uploaded online, it is clear that all we’ll be left with would be the publication of acquittals. Who, given the choice, would want their convictions placed on line?
Of course, this is all academic. Since it is not the subject that decides, but the government, there is no right here. There is just the government’s discretion and unmitigated authority.
Take a look back at the quoted provision. The government will decide whether to redact or remove a decision on the basis of “valid reasons”. The law does not say what those valid reasons might be. It does not give the government guidance and limits. National security and defence? The crime was committed when the subject was a minor? The explicit advice of a parole officer or a psychologist overseeing the case? Proven rehabilitation from some crime-inducing addiction?
All these could be potential reasons. But the absence of a list could suggest other possible reasons. They’re friends of the Minister? Their family supports the right political party? They are scary and could burn the Minister’s house down if they don’t get their way? They are the Minister?
The consideration of the “right to be forgotten” principle would be privacy. But because justice must be seen to be done, except in very rare circumstances such as the involvement of minors, criminal decisions are reached and handed down publicly. No one has a right to be tried secretly and one of the reasons is to prevent the suspicion or the reality of unfairness. That principle, of transparency in the delivery of justice to ensure equality in the way it is meted out to friends and foes of the justice minister alike, overrides any desire the accused or the convicted might have for their privacy.
That’s true in the real world so it must be true online as well.
Any administrative discretion must be applied on the basis of objective, proportionate, reasonable, fair, and non-discriminatory criteria. Here are ideas the Malta Information Technology Law Association had put forward back when Owen Bonnici’s mess first emerged.
As much as we didn’t have reasonable critera when Owen Bonnici covered up for mates of his who had a problem with their criminal record given their plans to practice law, we don’t have them now that this offensively discretionary “regulation” has been published.
Ask yourself: why should decisions of the criminal court be public? Because we cannot feel compassion, and exercise forgiveness and mercy as a society, if we are not allowed to know what we’re supposed to be forgiving. Anyone who makes a mistake and pays the price for it deserves a second chance, deserves to be understood and welcomed back into society.
But if we find the government hides from us what they’ve done, we have no choice but to be afraid and fear is the poison of compassion.
What’s worse is that Owen Bonnici and Edward Zammit Lewis have given themselves the power to mislead the public. The country functioned, less efficiently perhaps, before court decisions were online at all. The availability of the decisions on line is not quite as essential as air for us to continue to function. But the government is not proposing to switch off the online availability of the decisions. They are proposing to remove the ones they don’t want us to know about.
And now then, when we are, even fairly, punished by a court of law for a crime we may have committed, we then have to be tried by a political court that decides whether we are to be identified for public naming or given the privilege of being hidden from it. This is Soviet.
A court has clear guidelines limiting situations where they can order a ban on the names of people appearing before it or even published by it, for example in situations where revealing the name of an incestuous child rapist would condemn their victims as well. It’s frustrating the rapist gets to be protected from public humiliation as a result, but there are greater “valid reasons” for that sacrifice.
Not for the government though to impose on itself limits on when they can or cannot protect someone’s identity. As far as you’re concerned, they can prevent you from knowing what crimes their cousin, their canvasser, or their cabinet colleague has been convicted of. Because they can.