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It’s about people, not hyperlinks

Three years ago I participated in a UK Public Service Ombudsman meeting hosted in Malta, with the theme “Truth, Transparency and Accountability.”

This meeting was covered by this paper and journalists Kevin Schembri Orland and Helena Grech had reported the meeting in a very good manner.

This is how they had reported my intervention:

Justice Minister Owen Bonnici urged Maltese institutions to debate the right to be forgotten. He said that the state has a duty to provide information, and that citizens have a right to receive information, “however a third right now exists, the right to be forgotten.”

He mentioned an e-mail he recently received, where the person who applied for a job said he committed a small crime 10 years ago. The company then asked him for his police conduct sheet, which was clean (as after a period of time small crimes are removed from a person’s conduct sheet). The company then Googled the person and found information relating to the theft he committed 10 years prior, the minister said, and he ended up losing the job. “He told me ‘minister, what will you do about this?’”

“I know this is a delicate subject and it is easy to mistake the right to be forgotten as an excuse not to inform the public, but I would like to extend the invitation to the institutions to debate this issue”.

When Malta takes the EU Presidency, he would like the country to have a position on the subject.

Three years ago I was somewhat disappointed that no debate existed in Malta about the right to be forgotten. While in foreign jurisdiction extensive debates took place on the impact of the processing of personal data on the World Wide Web and the effects of search facilities, here there was absolute no debate at all.

I made a public appeal but, unfortunately, it fell on deaf ears then.

I was disappointed because this is a reality which hits people hard and affects their lives.

Our forefathers have implemented, over the years, legislation which provides for second chances to people who some time before had committed a wrong doing.

It has long been established that a person found guilty of an offence can, in prescribed circumstances and after passage of time, have his conduct certificate cleared. This, of course is not a hard and fast rule and exceptions apply. However this legislation provided a humane way of how to allow a person who had committed a mistake a number of years ago to carry on with his life without carrying a disproportionate burden.

This is, after all, the cornerstone of the principle of reparative justice.

The advent of the internet completely transformed this reality and as years go by, the effect of the internet in the area of processing of data online is leaving an ever stronger mark.

The fact that all judgments are put online means that a person could have his conduct certificate cleared according to the traditional procedures, but for all intents and purposes a simple Google search would throw all that out of the window.

The example I mentioned three years ago in that meeting is a concrete situation. Minister, a very well-educated middle aged person had asked me, what are you going to do about the unnecessary hardship I am going through?

What is even worse, there are cases where the person who is complaining of suffering hardship from the placing of judgments online would not even be person found guilty by means of that judgment but a third party who would have been mentioned in the judgment for some reason or another. Say, for instance, a person is identified in a 2005 judgment as being the girlfriend of a person found guilty of a crime who would have testified in the proceedings.

Little would it matter that in the meantime that person would have got married to someone else and raised a family. Little would it matter that the girlfriend in this case would have had absolutely no sentence of guilt against her. A prospective employer would only need to google her name to find the judgment and decide to play safe and choose someone else for a particular job.

This is not science fiction. These are experiences which people pass through.

It would be a grave injustice should authorities, for fear of being criticised, turn over a blind eye in cases where genuine are genuinely suffering.

The usual doom-and-gloom faction within the Nationalist Party tried to spin and banalise the issues related with honest calls for help by people who are bearing a disproportionate burden because of the advent of the internet and the placing of personal data online.

Let’s not turn this into a political football.

I am of course open to constructive suggestions which would lead to improving the procedures used in the application of the right to be forgotten found in existing data protection legislation within the context of online Court judgments. The Court Administration has, out of its own initiative this week, contacted the Chamber of Advocates and invited it to engage in discussions with the aim of improving current methods if necessary.

But I will never give my back to people who are bearing a disproportionate burden. Particulary so when the law provides for rights and obligations in so far as data subjects and authorities who process personal data are concerned.

The right to be forgotten is an emanation of the right to erasure. The right to the protection of personal data is enshrined in the EU Charter on Fundamental Rights and there is a specific article (Article 8(2)) which refers to the right to erasure.

This data subject right is then implemented in current Directive 95/46 (transposed in Maltese law as Cap 440. Data Protection Act) and finds itself also in the General Data Protection Regulation (Chapter III- Article 17) which will enter into effect as of next May 25.

Reference has already been made in public interventions about the ground-breaking European Court for Justice Costeja case which effectively enshrined the right to be forgotten. What has not been mentioned are the so-called Article 29 Working Party Guidelines on the right to be forgotten.

The Article 29 Working Party is made up of each Member State Data Protection Authority.

Some people have said – applying another judgment to support their argument, that the right to be forgotten should apply only vis-a-vis search engines. This is incorrect. These guidelines, in point 11 and 17, specifically mention the possibility for a data subject to go first to the original webmaster (in our case the Director General of the Law Courts).

Of course, the Opinions and Guidelines of this working party are not law but they do provide authoritative statements. Therefore, contrary to what some sections of the Opposition tried to portray, there are guidelines and a list of common criteria of the handling of complaints by Data Protection Authorities or any authority, such as the Director General of the Law Courts when deciding the merits of a request for the right to be forgotten to be applied. Some other points. I have read elsewhere arguments by people claiming that by deleting an online version of a judgment, that would lead to the deletion of the official record. No. The official record of a judgment is one thing and is accessible to anyone who requests to see it. The online version is another. The right to be forgotten does not mean the deletion of the official record, but the deletion of an online link to it.

Nor does the deletion of an online version lead to the non-publication although, admittedly, it makes it more difficult to be accessed. The law courts have been around for centuries well before the advent of the internet and no one claimed that the court judgments were not public then.

Nor is the deletion of an online version of a judgment automatic or widespread. A balance needs to be found by the data processor between the various rights and obligations which an individual person and society at large enjoy.

In fact in the past three years, only a handful of judgments have been “forgotten” after the data controller (the Director General of the Law Courts) carefully analysed the merits of each and every case. Here I must thank the Data Protection Commissioner who gave general guidelines and direction to the Court Administration about this novel civil right.

There are exciting times ahead in the area of data protection. I believe that in this area of civil rights we can set standards and best practices which will become more relevant as the years go by and our country will be ever more immersed in the online reality.

My parting message is one: the debate is not about hyperlinks. It is about people.


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