Maltese media organisations and NGOs have written to Prime Minister Robert Abela urging him to revoke a legal notice which allows the director general of the law courts to remove judgments from the courts' online portal at his discretion.

They expressed alarm that Legal Notice 456 of 2021 gives the director general sole discretion to decide whether a person has “valid grounds” to have court judgments removed from a public government website, on the pretext of allowing people to exercise their right to be forgotten.

The legal notice says the right to be forgotten can be applied by either censoring any part of the judgment or by removing the judgment from the internet entirely.

“The online publication of court judgments fulfils the Maltese state’s Constitutional and ECHR (European Court of Human Rights) obligation to ensure that all stages of a trial are public, including the judgment. It also serves the public interest of transparency and accountability by delivering access to the public, including, crucially journalists and other social watchdogs,” the prime minister was told in the letter.

“Moreover, the FATF’s greylisting of Malta has obliged the country to step up its control over dubious behaviour. A state that denies journalists and civil society an essential tool - the ability to research judgments - casts doubt on its commitment to transparency.”

They added that the power being granted to the director-general is also of concern as it raises the issue of conflict of interest since the director-general answers directly to the Justice Minister.

“While the right of erasure of personal data (also known as ‘the right to be forgotten’) is one that places two positive obligations on the state, applying this right to the online publication of court judgments 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 administered by the government that contains public records.”

The Court of Justice of the European Union, they said, balanced the right to be forgotten with the need to keep information that is of public interest accessible, particularly criminal records.

“Relying on the right to be forgotten as a way to censor court judgments is unjustifiable.” 

“We accept that there are legitimate circumstances in which a judge or magistrate may order a ban on publication, such as names of victims in sensitive cases. However, 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 judgments online.”

“Legal Notice 456 compromises fundamental human rights as it denies ordinary citizens the right to know and inhibits access to information that is in the public interest. It also raises serious questions concerning the separation of powers between the judiciary and executive branches of government. The legal notice should be revoked,” the letter says.

The letter was signed by:

Matthew Caruana Galizia, Director, The Daphne Caruana Galizia Foundation

Julian Bonnici, Editor, Lovin Malta

Neil Camilleri, Editor-in-Chief, The Malta Independent

Helen Darbishire, Founder & Director, Access Info Europe

Herman Grech, Editor-in-Chief, Times of Malta

Caroline Muscat, Founder, The Shift

Kevin Papagiorcopulo, Editor, Newsbook

Matthew Vella, Executive Editor, Malta Today

Matthew Xuereb, President, Institute of Maltese Journalists (IĠM)