Author: Natalia Rusu, natalia.rusu[at]ipre.md.
The right to privacy, including the preservation of anonymity while interacting with public authorities or other private entities, are essential to ensuring the rule of law and respect of fundamental rights in a democratic state. However, in the era of transparent governments these two cannot be absolute.
A logical consistency is being observed in the spirit of ECHR jurisprudence and the Court of Justice of the European Union to enforce the balance between competing rights of protection of personal data and access to public information. The courts have repeatedly emphasized that ensuring transparency in the decision-making process necessarily implies a public scrutiny, especially in cases where there is increased public interest, and there is an increased incidence of conflicts of interest or high risks of corruption.
At national level, following the practices of the EU Member States, it has been established that when several fundamental rights compete with each other, similar solutions have been offered by applying a fair balance to ensure that these rights are guaranteed.
In the context of the publication of judgments, both the ECHR and the CJEU publish all decisions issued without broad application of the principle of anonymization, with the exception of decisions containing sensitive data. It is important to note that in the case of these two Courts, the major difference from the national courts is that, when examining the merits of the case, the litigants are entitled to request anonymity, but the judgements publication is primarily for educational purposes for the national courts, public and for civil society.
In the Republic of Moldova, one of the major debates is on excessive anonymization of court rulings, especially after the approval in November 2017 of the Regulation on the publication of judgments on the single portal of courts, which creates for journalists and society barriers to access the information of public interest. Nevertheless, from the perspective of the European case-law on anonymization of judgments, the provisions of the Regulation have little relevance for the categories that are exceptions from the general anonymization rules and there is no clarity on how to safeguard personal data when accessing the information of public interest.
In another context, it is noted that the right to privacy and the protection of personal data are not fully perceived by the actors involved in the processing of personal data. With the entry into force on 25 May 2018 of EU Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (hereinafter EU Regulation 2016/679) and the adoption of the updated CoE Convention 108 on 18 May 2018, the provisions of which are synchronized with the provisions of the EU Regulation, the Republic of Moldova has to comply with the obligation to provide higher safeguards of personal data, including in the on-line environment, by applying the principles of transparency, proportionality, accountability, minimization of data collection and privacy by design.
This analysis will highlight the general context of anonymization in digital environments, followed by a presentation of the most relevant legal practices of the ECHR, the CJEU and of national courts of the EU Member States on enforcement of legal solutions on the fair balance of competing rights of privacy and data protection with the access to public information, as well as the practices used to anonymize court decisions.
Also, examples of the legal framework on the publication of court rulings on the web portals of national courts and the application of anonymization rules towards the published data will be addressed.
The analysis also provides specific recommendations to public authorities in the justice sector and civil society actors to ensure the fair balance between the protection of personal data and access to information of public interest in the Republic of Moldova.
Below is a summary of key recommendations:
- Development and promotion of security policies and procedures to meet the confidentiality requirements of processed personal data (i.e. data security, complaint procedures, data accuracy, reporting of security breaches to the National Center for the Protection of Personal Data (hereinafter the CNPDCP);
- Uniform implementation by the national courts of the provisions of the new Regulation on the publication of judgments on the portal of courts;
- Conducting trainings on a regular basis for judges, assistants, court clerks and other legal staff of the courts, as well as for the Superior Council of Magistracy and the Agency for the Administration of Judicial Courts (hereinafter AAIJ);
- Development by the Superior Council of Magistracy (hereinafter CSM) of a new Regulation on the publication of judgments on the portal of courts with the participation of international experts and civil society in accordance with the provisions of the updated CoE Convention 108 and the EU Regulation 2016/679, taking into account the existing ECHR and CJEU case-law.
- The new Regulation could envisage the following key aspects:
- Principles and criteria for anonymization on the basis of the categories of participants in the trials and the gravity of the cases examined, as well as the express provision of the procedure for granting access to the participants in the trials of data recorded in the judgments and in the cases under examination;
- Exceptions to personalized publishing and granting access to judgments of major public interest;
- The new CSM Regulation could include “ex officio” procedures for personal data to be applied for decisions and other data related to ongoing cases (with sections for civil, criminal, misdemeanor and administrative litigation);
- The procedures will serve as guidelines for courts in the process of anonymizing judgments and other documents issued by courts (conclusions, sentences, prescriptions, enforceable procedures etc.).
An extensive exercise of balancing competition rights will be required for categories of criminal, civil, misdemeanor and administrative litigations where the underlying element is the scrutiny of public and private interests. However, the CSM Regulation should provide for the option when “ex officio” solutions are not applied, but interested parties are entitled to request the application of another anonymization option upon the submission of evidence in supporting a different solution.