Right to be Forgotten (Guidelines)

Guidelines on the Application of Legal Notice 456 of 2021 regarding the Online Publication of Court Judgments (Data Protection) Conferment of Functions Regulations (Subsidiary Legislation 12.32)

1. Preliminaries

The right to a fair hearing requires that the judgments of the Courts be delivered in public.

Judgments of the Courts are accessible by the public in terms of the law from the Court Registry and the Court archives.

The Legal Notice entitled 'Online Publication of Court Judgments (Data Protection) Conferment of Functions Regulation’ deals only with the publication of judgments on the electronic site ecourts.gov.mt and it shall not prejudice the principle of publicity of judgments as protected by the Constitution and the law.

All judgments of the Civil and Criminal Courts are published online on the website ecourts.gov.mt except for judgments of the Family Court or where there is a prohibition on the publication in terms of the law or by Court order.

The Chief Executive Officer, upon receiving a request in terms of protection of the right to privacy and family life, for the removal of a judgement from the above-mentioned website, verifications should be made to ascertain that the individual making the request is the identified or identifiable Data subject referred to in the judgment and upon confirmation the request will be assessed.

2. Criteria and Considerations

The criteria and considerations to be used in assessing whether the removal, in whole or in part, or the anonymisation of a judgment from the online system is justified are the following:

1. The reason for the request, which should be explained by the applicant;
2. The necessity for the judgement to remain on the website for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes;
3. Whether the removal, in whole or in part, or the anonymisation of a judgment from the online system will have a negative impact on other individuals;
4. The rules of the General Data Protection Regulation (Regulation (EU) 2016/679) in particular article 17 (right to erasure 'right to be forgotten) which also forms part of the laws of Malta;
5. Decisions of International Courts in particular those of the Court of Justice of the European Union (CJEU) and of the European Court of Human Rights (ECHR) regarding the processing of personal data.

3. General Guidance - Balance between Rights and Obligations

As a rule, the following requirements must be met before approving the removal, in whole or in part, or the anonymisation of a judgment from the online system:

1. Three years have elapsed from the date of the judgment;
2. If the convicted person has been sentenced to pay a fine, the fine must be paid;
3. If an appeal has been lodged from the judgment, the appeal must first be decided and the three years must commence from the date of the judgment of the court of appeal;
4. In cases where the judgment is a preliminary judgement or subject to other ongoing proceedings, those proceedings must be terminated;
5. In the event of a conviction for a suspended prison sentence, the operative period must have elapsed;
6. If the applicant is acquitted, the judgement shall, except on grounds of public interest, be removed shortly after the request is made.

4. Notification of the Decision

The decision shall be communicated in writing to the person making request within thirty (30) days of receipt of the request by the Chief Executive of the Court Services Agency.

5. Right of Appeal

The person making the request shall also be informed that there is a right of appeal from the decision of the Chief Executive Officer of the Court Services Agency to the Commissioner for Information and Data Protection in case the request is rejected.