Dilemmas are common in life. Choices have constantly to be made. Compromises, too. Striking the right balance can be difficult, especially when dealing with fundamental human rights.
The controversial decision by the government to issue a legal notice allowing for the removal of judgments from the court database sees article 8 of the European Human Rights Convention clash with article 10.
The right to respect for private and family life, home and correspondence (article 8) gave rise to the right to be forgotten, empowering a person to demand that personal data available online be removed.
The right to freedom of expression, enshrined in article 10, includes the right to hold opinions and “receive and impart information and ideas without interference by public authority and regardless of frontiers”.
The legal notice published late last month empowers the courts' director general to erase “personal data” in judgments published online on the court services agency’s website.
This, it adds, can be done “either by anonymising the judgment or any part thereof or by removing the judgment from the said website”.
So, it is not just personal data that can be removed but the whole judgment. A civil servant now has the power by law to censor a document authored by a member of the judiciary.
A number of media organisations, including Times of Malta, immediately saw the repercussions this move could have and lost no time in asking the prime minister to revoke the legal notice. That has not happened, so far, though guidelines on its application have since been issued.
However you look at it, the bottom line is one: denying access to documents that, by law, are in the public domain unless decided otherwise by a judge or magistrate when pronouncing sentence.
The European Court of Justice has stressed that “particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive”.
Before anybody rushes to bring up the 2014 decision by the Luxembourg-based court, which had upheld a Spanish man’s request for references to his past to be removed from search engines like Google, the same judges had also ruled that reports about the case should remain on news sites.
That decision was motivated by the widely accepted argument that the interests of the public in having access to information outweighs the interference with an individual’s privacy rights.
The court lays stress on the importance of internet archives in historical research and information: “Digital archives constitute a precious source for teaching and for historical research in particular because they are immediately accessible to the public and generally provided free of charge.”
The legal notice sets a dangerous precedent. Court judgments are as important, in terms of public record, as notarial acts. Will these be targeted too?
And what if, as a service to the public, news websites start uploading court judgments once published? Will the legal notice be widened to cover those too?
What had started as an arbitrary and unregulated purging has been given the semblance of regularity and purposefulness. The fact that the internal court database still retains copies of judgments is a red herring. To access a given judgment one would have to know certain particulars and then ask for a copy. The court public database was intended specifically for the public, in line with the publicity of judgments.
The new regulation is a veritable slap in the face for the right to access information.