Pandora’s Box risks getting opened now that Justice Minister Owen Bonnici has confirmed people are allowed to request the deletion of their court records from the online database.
This tool only became public today after it was successfully applied by a newly minted lawyer to delete a 2010 criminal sentence that conditionally discharged her for stealing a credit card. However, Bonnici said the tool has actually been in place since he was appointed minister 2014 and has been successfully applied around 12 times.
Now the existence of this tool has opened a debate in Malta on the right to be forgotten – a few months before the coming into force of an EU data protection regulation that will allow citizens to request the erasure of certain online personal data in specific circumstances. The regulation allows courts to reject such requests if the data is in the public interest, including for archiving purposes.
It is a very thorny debate pitting the right to privacy versus the right to access public information
The argument in favour of privacy
Justice minister Owen Bonnici (centre)
Owen Bonnici’s argument is that the eternal nature of online data means petty crimes can continue to haunt people throughout their lives.
“The Ombudsman and I have received letters from people complaining that they have been denied jobs because their potential employer would have found their criminal record from several years ago on Google,” he told Lovin Malta. “Is it right for people to be continuously punished for a small crime they committed several years ago even when their police conduct would have long been cleaned? For example, if you were punished for stealing beer from a supermarket ten years ago, is it fair that everyone can find out about that part of your life by searching your name on Google?”
When he was appointed justice minister in 2014, Bonnici instructed the director general of the law courts Frankie Mercieca to discuss this problem with Data Commissioner Saviour Cachia. The two agreed that such requests should be decided on a case-on-case basis, and Bonnici assigned this immense responsibility to Mercieca, who the minister said he has complete trust in.
He confirmed that there are no written guidelines on what constitutes a genuine right to be forgotten, but said Mercieca takes into account the nature of the crime, the court sentence and the date it was given so as to ensure the tool is only used to obliterate the record of petty crimes that had been committed several years ago.
Bonnici added that the Data Protection Law already states that data controllers should only retain personal data if it is “necessary”.
In a tweet, Bonnici also cited a 2014 judgement by the European Court of Justice which ruled that Google should delist records detailing how the home of a certain Mario Costeja González had been repossessed to pay off debts fifteen years prior.
“The right to be forgotten is not something I invented but the effects of a very important 2014 ECJ judgment,” Bonnici said.
The argument in favour of the public interest
IT lawyer Antonio Ghio
IT lawyer and data protection lecturer Antonio Ghio has a completely different outlook.
“In this case, we are talking about the removal of a criminal judgement against a lawyer who may also be a public officer,” Ghio told Lovin Malta. “If the concept of the public interest doesn’t apply for criminal judgements, then it may very well be the case that it should not apply for most judgements, and half of Malta will now be able to request their judgements to be practically deleted to public inspection.”
“We are talking here about the removal of the record of a criminal judgement. Do criminal judgements have less public interest than civil ones? If not, then can people now ask the courts to delete records of their divorces? I hadn’t even know this was allowed until today, and in fact there aren’t even any guidelines as to what constitutes a right to be deleted from the online court records. This is absurd; these cases cannot be decided on a case by case basis. Such decisions must be made on legitimate, justifiable and transparent rules which balance all rights involved.”
“The right to be forgotten is not absolute but has to co-exist with other rights including the public interest right. Information freedom is purely a balancing act between these competing rights”
Moreover, he said there is a massive difference between the removal of data from a search engine (as in the Costeja case) or from a credit database and the removal of data from the original public source such as the online court registry.
To counter Bonnici’s referral to the Costeja case, he referred to a 2017 ECJ judgement which dismissed Salvatore Manni’s request for his history as a company director to be deleted from the Italian register of companies. In this case, the CJEU ruled that the “right to be forgotten” is not absolute and does not prevail over society’s interest in accessing official public records of company details.
“The test that had to be applied was Manni and not Costeja and such test (as to whether the right to erasure should apply to criminal court judgements) should be proportional, legitimate, transparent and (quoting Manni Judgment) ‘exceptionally justifiable on compelling legitimate grounds’.”
“In applying the right to be forgotten in such a non-transparent matter, we might as well have the online registry of the courts carrying a caveat (like Google searches) where we are informed that Some results may have been removed under data protection law in Europe”.
Interestingly however, Google FAQs relating to the right to be forgotten state that: “We’ll also look at whether there’s a public interest in the information remaining in our search results – for example, if it relates to financial scams, professional malpractice, criminal convictions or your public conduct as a government official (elected or unelected)”.
And here we’re talking about the principles applied by Google ( a secondary data controller) and not the principles that should be applied by the controller of the source, that is the public record.”
“At the very least I would expect the Courts Registry to apply the same benchmark as Google but I might be asking for too much”.