Two legal experts condemned as “wholly reprehensible” a new legal notice that gives the director-general of the court total discretion over whether court judgements are published online, raising concerns about its implications on several fronts.
Former European Court of Human Rights Judge Giovanni Bonello described Legal Notice 456 as “reprehensible”. He told The Shift it is “objectionable for more than one reason”.
One of the main, questionable aspects of the legal notice lies in the fact that the director-general is a State employee who answers directly to the justice ministry, raising concerns related to independence.
The legal notice was originally drawn up three years ago but lay dormant until it was quietly pushed through last week.
In its wording, the legislation refers to a concept known as ‘the right to be forgotten’, which essentially refers to an individual’s right to ask an entity to delete their personal data from its registers in specific circumstances.
“This so-called right to be forgotten was established by the European Court of Justice in a judgement delivered in May 2014. This judgement, to the best of my knowledge, only referred to the right of individuals to request commercial websites with search engines like Google and YouTube to delete personal data relating to that individual,” Bonello said.
“Relying on a misunderstood and non-existent ‘right to be forgotten’ to censor official documents is wholly reprehensible,” he added.
Bonello also referred to the fact that no criteria are listed in terms of what the court’s director-general must consider when weighing out decisions on whether to publish a court judgment online or not.
“The Legal Notice allows the director-general to be utterly arbitrary in what he decides. This, too, is highly objectionable. Arbitrary power is the usher of tyranny. We must not forget that the Constitution and the European Convention on Human Rights mandate, as a prerequisite to a fair trial, that all the stages of the trial should be public – including the judgement,” Bonello said.
This, Bonello added, was essential to “safeguard parties from covert manoeuvres and to keep the judiciary on its toes”.
Lawyer Michael Zammit Maempel echoed similar concerns, going further to state that once courts become secretive “there is no control over what’s happening” within their structures.
“The implication of all this is that, on the one hand, we have the FIAU, Moneyval and the FATF asking professionals such as myself to make sure that we check and double-check the track records of anyone who walks through the doorstep of their office and on the other you have the ministry of justice making this process more opaque,” Zammit Maempel said, referring to background checks for prospective clients.
“Checking online judgments would have been one way of doing this work transparently because it would have been available. Now, we are leaving this discretion in the hands of someone who should not be exercising this discretion,” he added.
While both Bonello and Zammit Maempel acknowledged that there may be certain circumstances in which a judge or magistrate may, for example, order a ban on the publication of names of victims in sensitive cases such as ones involving child abuse, the lack of criteria means the court’s director-general is not bound to stick to well-defined exceptions.
Given that such a legal notice can be challenged through a motion tabled in parliament by the Opposition, questions on the matter were sent to the PN’s spokesperson for justice, Karol Aquilina. When contacted for comment, Aquilina confirmed the Opposition is working on formulating a response to the government’s notice, stating they will provide further details later in the week.