People found guilty of a crime can apply to have the court judgment against them removed from the public domain after three years, according to guidelines issued by the Court Services Agency.

The guidelines also state that if the judgment is appealed, the three year period starts from the date of the appeal decision. 

Anyone found not guilty of a crime can also apply to have a judgment removed, with the guidelines stating that the agency CEO will promptly do so "except in the grounds of public interest." 

The guidelines build on a controversial legal notice which gives the director-general of the court the discretion to alter or remove judgments from the courts’ online database if they believe there are "valid grounds" to do so. 

Passed on the pretext of granting people the 'right to be forgotten', the legislation has been criticised for placing barriers to transparency and restricting knowledge that is in the public interest.

Earlier this week, Maltese media organisations, including Times of Malta, and several NGOs wrote to Prime Minister Robert Abela urging him to revoke the legal notice.

They argued that the legal notice did not include well-defined criteria that precisely establish in which cases the court’s director-general may choose not to publish court judgments online.

The Nationalist Party has also announced that it will be filing a motion in parliament to cancel the legal notice.

What's in the guidelines?

The Court Services Agency CEO has the power to remove judgments from the court's online database entirely, in part, or to anonymise them. 

Applicants must explain why they are requesting the removal or censorship of a judgment. Such requests can be considered once three years have passed from the time when the court passed its final judgment.

The CEO must consider whether removing or anonymising the judgment will have a negative impact on other individuals. He or she must also base the decision on the EU's General Data Protection Regulation and EU courts’ decisions on the processing of personal data.

The guidelines sketch out a list of preconditions that should be satisfied "as a general rule" before a right to be forgotten request can be considered: 

• Three years must have elapsed from the date of the judgment;
• If the offender has been sentenced to a fine, the fine must be paid;
• If an appeal has been lodged, the appeal must first be decided and the three years from the date of the judgment of the court in the degree of appeal must begin;
• If the judgment is the subject of other proceedings, those proceedings must be terminated;
• In the event of a conviction for a suspended prison sentence, the operative period must have elapsed;
• If the person was found not guilty, the sentence shall, except on grounds of public interest, be revoked shortly after the request is made.

The guidelines also stipulate that a decision must be communicated to the applicant within 30 days of the request. The applicant can appeal the decision.

Years-long practice

The legal notice and court agency guidelines add form to a practice that was started in 2018 under then-Justice Minister Owen Bonnici, who decided to give the courts discretion to remove judgments from its online database. 

That decision was never made public and was only discovered by coincidence. 

The 'right to be forgotten' first became an issue of public discussion in 2014, when the European Court of Human Rights upheld a Spanish man’s request for references to his past to be removed.

The ECHR ruled that the man had the right to request search engines such as Google to remove search results related to a debt he owed in the past, though it turned down a request for news sites to remove their reports about the case.