Right after the new General Data Protection Regulation (“GDPR”) came into force, many debates were initiated regarding its limits and the proper way of its implementation. The GDPR provides a new set of rules but unfortunately it does not always provide the way and the means to reach compliance. One of the issues raised, which has encouraged a lot of discussion, is the uncertainty regarding the online publication of Court decisions.
Court decisions contain numerous personal data which are collected for purposes other than those of publicity. It can be argued that full disclosure of the case details including the names of the parties and the case facts can seriously harm people for life. On the other hand, it is a legitimate right of the general public to have access to electronic press archives and this is protected by the fundamental right of freedom of expression and information. Limitations to this right must be justified by particularly compelling reasons.
B. The implementation of GDPR
The GDPR regulatory framework does not provide guidance in this regard. In Democracy, the Rule of Law requires that the application of the law by the judiciary is transparent and that citizens have adequate access to the sources of law. Paragraph 1, of Article 6 of the European Convention on Human Rights underlines that:
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
The publication of court decisions provides insight on how the law is applied by the judges. It is of the utmost importance for legal professionals, public bodies and citizens to obtain the knowledge regarding landmark cases and to be informed about the evolution of law. The internet has revolutionised the way information can be disseminated; many courts and judicial authorities have been using modern technologies to make court decisions available to all.
But what happens after GDPR?
In May 2018, when the EU’s General Data Protection Regulation (GDPR) came into force, the Supreme Court of Cyprus decided that court decisions will not be published, unless differently decided, until a legal framework is established in relation to GDPR. As a result, all decisions, remained unpublished until the 19th of July 2018.
C. The impact of the decision taken by the European Court of Justice (“ECJ”)
ECJ, tried to achieve a balance between the protection of personal data of natural persons involved in requests for a preliminary ruling and the right of the public to access court decisions. As of that, ECJ decided that in all requests for preliminary rulings brought after the 1st of July 2018, in all its public documents, the name of natural persons involved will be replaced by initials. Similarly, any additional element likely to permit identification of the persons concerned shall be removed.
In that respect, the following were decided:
1) When the case is between natural persons, the case name will correspond to two initials representing the first name and surname of the applicant, but it must be different from the true name and surname of that party; and
2) When the parties to the case include both natural and legal persons, the name of the case will correspond to the name of one of the legal persons.
You can read the ECJ’s decision here: https://curia.europa.eu/jcms/upload/docs/application/pdf/2018-06/cp180096en.pdf.
On the 19th of July 2018, following the guidance given by ECJ, the Supreme Court of Cyprus announced that the court decisions will be publicly available. The decisions will not be anonymised and may include all the personal data and data identifying the parties if and when they are considered essential for the purpose of the Court's judgment, in compliance with the principle of proportionality. Τhe names of the parties shall be anonymised in all cases falling within the jurisdiction of Family Courts and in cases involving minors, both political and criminal.
Judicial decisions intended for publication/processing on the internet, will be published with reference only to the surname of the parties, without reference to any other elements of their name and in particular without reference to any alias. When the decisions are taken at a public session, many personal information which shall not be required to be disclosed, shall be anonymised at the discretion of the Court of Justice, and will always be subject to the principle of proportionality.
D. Concluding Remarks
The on-line publication of court decisions requires balancing a variety of interests, within the boundaries set by legal and policy frameworks. The Supreme Court made an effort to protect the transparency of the judiciary and to comply with the Regulation’s scope. However, we need to consider the delay of the publication of Courts’ decisions as they have to be reviewed and anonymised before they become available online. In addition to this, the publication of an anonymised court decision will not restrain the wrongdoers from breaking the law or even facilitate illegal behaviour of a person or a company, because of the shield of anonymity offered.