Right to privacy and data protection or access to information of public interest – what provided the European and national jurisprudence for

The 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, is one of major subject that creates for journalists and society barriers to access the information of public interest. This issue has been examined in details, in a thematic analysis by Natalia Rusu, IPRE analyst entitled “Protection of personal data vs. access to public information – European jurisprudence and national practices”.

According to the analysis, 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. 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.

Pursuant to the Court of Justice of the European Union (CJEU) and European Court of Human Rights (ECHR) jurisprudence, the ensuring transparency in the decision-making process necessarily implies a public scrutiny, especially in cases where there is increased public interest, and an increased incidence of conflicts of interest or high risks of corruption.

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 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.

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.

At the EU Member State level, the practice of anonymizing court decisions is widely used, depending on the category of persons involved in the trials and categories of data contained, while maintaining present the argument of respecting the integrity and morality of individuals.

The analysis also offers specific recommendations to public authorities in the justice sector and civil society actors to ensure the necessary balance between the protection of personal data and access to public information in the Republic of Moldova, namely:

• Taking over the best practice from European jurisprudence in balancing the rights of access to public information and personal data protection;
• 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 modernized 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, misdemeanour 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, misdemeanour 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.
• 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.

For more details see the attachment or contact the author directly: Natalia Rusu, IPRE analyst, natalia.rusu [at] ipre.md.

This analysis has been elaborated within the IPRE “Public Policy Thematic Analysis “project, supported by the Konrad Adenauer Foundation (KAS) in the Republic of Moldova. The opinions reflected in this publication belong to the authors and do not necessarily reflect the opinion of KAS.