Court records law under spotlight of six international press freedom NGOs

Pressure continues to grow on the government to scrap a legal notice which empowers the director-general of the law courts to decide on which court judgements are available for public scrutiny with another official letter to prime minister Robert Abela and justice minister Edward Zammit Lewis, this time penned by six international press freedom organisations.

Echoing concerns already expressed by legal experts and local organisations, the press freedom organisations slammed the legal notice, saying it “enables arbitrary decision-making that damages the right to information, unduly hinders journalists’ reporting in the public interest and undermines the separation of powers”.

Despite the added pressure, the government has pushed ahead with its current legal notice, publishing guidelines for the director-general of the court to follow. While the guidelines do pay lip-service to some of the points made by the mounting opposition against the legal notice, the discretionary powers of the director-general remain.

The “general guidelines” state that in order for the director-general to consider a request for removal from online public records, three years from the date of sentencing must have passed and any case-related fines must have been paid. Should the case in question be followed up by an appeal, that appeal must be concluded before a request for removal can be considered. The same applies for any cases with other, linked cases which may be ongoing at the time of the request.

If a suspended sentence is issued, the period in which the sentence is being carried out must first elapse before a request can be submitted. If a person is found not guilty, a sentence can be removed immediately upon request unless public interest is deemed to be more important. However, the main issue ultimately remains that the guidelines do not bind the director-general to justify their decision and they still allow room for arbitrary decision-making.

“The principle of publicity of court proceedings, including the verdict, as protected under European human rights law and extensively developed in the European Court of Human Rights’ jurisprudence, is an essential means for realising the right to a fair trial and maintaining public confidence in the judiciary. In this regard, court reporting by journalists is crucial because it informs the public how justice is done. To fulfil this public interest role, journalists must be able to rely on a comprehensive record of fully published verdicts,” the group statement reads.

The group of media organisations condemned the government’s attempt to justify the legal notice by pinning it to the right to be forgotten as “disingenuous”, further reinforcing what legal experts quoted by The Shift said when they explained that the right to be forgotten refers solely to delisting from commercial search engines, not public records.

In their statement, the organisations quoted one of the recommendations of board of the public inquiry into the assassination of Daphne Caruana Galizia, which had specifically insisted that, besides structures meant to physically protect journalists from threats, the state must “create a favourable environment which allows journalists to exercise their profession in a secure and effective manner”.

The statement’s signatories described the director-general of the Court Services Agency as “a non-judicial appointee without statutory autonomy who is appointed by answers directly to the minister of justice, with full discretion to decide whether a judgement is partially anonymised or even removed from the public record altogether,” calling into question the Maltese government’s commitment to transparency.

Yesterday, The Shift reported comments from the Malta IT Law Association (MITLA) which revealed that the government has had detailed academic advice on how to correctly implement the right to be forgotten in legislative form for the past three years. Then-justice minister Owen Bonnici had claimed that the government’s call for discussion on the matter had “fallen on deaf ears”.

The statement was signed by the European Centre for Press and Media Freedom, the European Federation of Journalists, Free Press Unlimited, the International Press Institute, OBC Transeuropa and Reporters Without Borders.