Hannes Vallikivi
attorney-at-law
The name of my law firm from 2016 up to 2020 was Derling. Our godparent Magnus Derling, born in Pomerania around 1636, moved to Tallinn after university studies and was one of the eight lawyers of Tallinn in the second half of the 17th century. Tens of files about Derling have been preserved in Tallinn City Archives and National Archives: both the ones where he represented clients and the ones where he went to court for lost fees or where he claimed compensation money from offenders. However, we would not have discovered him if he had not gotten into a wedding fight in 1677 where he hit the literate Hinrich Salmuth with a beer mug. This court document is printed in an exciting book of the city archives.[1] In the interests of the counterpart, it should be said that wedding fights were common at the time and that Derling was not found guilty. Anyway, from 1690 up to his death in 1693 he was the mayor of Tallinn meaning the highest official of the city.
There has been a lot of talk lately about a contemporary of our hero – woodcarver Christian Ackermann (approximately 1650-1710). His art can be currently admired at the exhibition in Niguliste Museum as well as in many churches in North and West Estonia. Ackermann was a rebel of Tallinn’s art scene at that time and despite the guild regime, Tallinn town council recognized him as an independent master. The main data about Ackermann originate from his debt disputes and the reports about the artist’s life almost end, when he was finally released from debt thanks to a large order of the altar wall for Toomkirik.[2]
Let’s move a few hundred years forward in time. For several years we have celebrated the hundredth anniversaries of the Estonia state, institutions and laws. Everyone remembers that the Republic of Estonia was publicly proclaimed on the 23rd of February in 1918 in Pärnu from the balcony of Endla Theatre. Perhaps it is also remembered that the proclaimer was attorney-at-law Hugo Kuusner (1887–1942). Kuusner, who belonged to Tõnisson People’s Party, was a member of the Provincial Assembly. He was also elected to the Constituent Assembly and actively participated in the drafting of the Constitution. Later, he was a lawyer, journalist, entrepreneur and well-known public figure in Pärnu. At the same time, it is known that Kuusner had some troubles and that for many years he wrote memoranda about celebrating the anniversary of the republic on the wrong day (considering the 23rd of February, of course, to be true).
What happened to one deserving creator of the state of Estonia we can find out from the old court files. In 1928, Kuusner was appointed the custodian of the heritage of merchant Johannes Ruut from Pärnu. According to the accusation Kuusner misappropriated 2 400 kroons entrusted to him for payment of taxes from the estate and took a loan from Pärnu Credit Bank secured by the estate and transferred the bank bond to the bequeather’s widow, damaging the interests of other heirs. It was a legally complex and controversial case, but the lawyer was convicted guilty in all three instances of court. Kuusner fought for justice for years and repeatedly asked the Supreme Court to reconsider the case in the light of new circumstances. Each time without success, although the last time in 1939, even the prosecutor suggested a new hearing of the case and the Chief Justice of the Supreme Court Kaarel Parts, out of the three-member panel, was of different opinion.[3]
Well-known litigators
We did this brief course in Estonian history about the cases of Salmuth v. Derling et al., Tallinn guild of carpenters and woodcarvers v. Ackermann and with the help of the survived judgments on Kuusner’s case. Lawyers are accustomed to naming judgments with codenames. In most cases the name is lent to the case by the main party to the proceeding, such as the applicant or the accused.
Everyone who has seen American police movies knows the formula for arrest by heart: you have the right to remain silent, everything you say may be used as evidence against you, and so on. This is called Miranda’s warning due the unfortunate fate of Ernesto Miranda (1941-1976). Pro bono lawyers took Miranda’s case to the U.S. Supreme Court and won there (Miranda v. Arizona (1966)). Ever since, “miranda” has become both a noun and a verb in Anglo-American legal jargon. All significant U.S. Supreme Court cases are known by the names of the parties, such as Marbury v. Madison (1803), Brown et al. v. Board of Education (1954), Roe v. Wade (1973) et al. Even if the litigator is not well-known, he or she has the opportunity to go down in history.
The European Court of Human Rights has the same story. Human rights defenders know that the first and so far one of the most important cases of freedom of expression was Handyside v. United Kingdom (1976) or that the decriminalization of homosexual relations between men was prompted by the case of Dudgeon v. United Kingdom (1981). These world-changing cases were named after Richard Handyside, owner of the tiny English publishing house Stage 1, and Jeff Dudgeon, a local politician and community activist in Belfast. Even Estonia’s most famous case in Strasbourg is more accustomed to be called the “Ravenmother case” than Tammer v. Estonia (2001).
The decisions of the Supreme Court also have nicknames, one of the best known of which is the “Brusilov case”.[4] Brusilov’s name can be found in the legal literature and by google in the explanatory notes, annotations of court decisions and elsewhere, but the applicant’s name has been delicately removed from the text of the judgment on the Supreme Court’s website and Riigi Teataja. That’s what I want to talk about.
Does the new era call for new rules?
There is a long cultural tradition of naming court decisions with the names of the parties to the proceeding. For some time in Estonia – even before the entry into force of the General Data Protection Regulation in 2018 – the names of participants in proceedings and others have been replaced with initials or other letters and other personal data has been deleted in many court decisions. This technique is pseudonymisation, which in Estonian could be called “varjunimestamine” (aliasing). [5]
At the end of last year the Ministry of Justice announced its intention to develop several amendments to the procedural act.[6] There are good initiatives in the document, but the proposal to remove personal data from the published court decisions turns the codename of intent “publicity of court proceedings” into an Orwellian doublespeak. The ministry has proposed to extend the already effective pseudonymisation to acquittals in criminal proceedings and to the orders terminating the proceedings against the accused as well as to all decisions in civil and administrative matters. Not much space is devoted to justifying the proposal, but the aims are to protect privacy and harmonize case-law.
My task is not to dissect the intention to develop the draft, but to answer the question of whether or not the deletion of personal data from published court decisions is justified at all. The technocrat in me would respond quickly – by no means. Mankind has entered the digital era and the greatest achievements in the field of both everyday life and science are made thanks to computer analysis of large amounts of data. The new methods are not prevalent only in the natural sciences, but are increasingly becoming well established in the social sciences and humanities. The law does not stand in isolation from others and the availability and machine processing of data is essential for the advancement of law.
The texts of court decisions are the most important sources of living law. Therefore, it is sad to look at the robot trap set up on the website of Riigi Teataja. A few years ago, the Estonian Bar Association and the University of Tartu organized a legal robotics competition. The aim was to encourage students to construct legal analysis tools to quickly find regulations and their interpretations.[7] Today, there is no point in creating such tools in Estonia due to the absence of automatic access to important raw data.
In addition, I monitor the development of technology as a legal practitioner. There are more and more applications around the world that help process court files or business agreements, draft legal documents, detect trademark infringements, money laundering or other fraud, and so on. There are very few such solutions in Estonia and even fewer solutions dedicated to Estonian law. There are various reasons. The Estonian language is grammatically complex, the text corpus of legal sources is too small for machines, etc., but above all, the Estonian market is small and it is worth developing only these products that can be sold globally. On one hand, this is not only an issue in Estonia – legal technology start-ups in the United Kingdom are far behind financial technology companies in attracting investments.[8] Although the reason given is the conservatism of lawyers, I think it is due to the complexity of mechanizing the law. If the solutions offered were convenient and helpful enough, these would be purchased and used.
On the other hand, it should not be assumed that practical law remains untouched by technology. We are all looking for more exotic legislation and interpretations by googling. As lawyers we are able to critically evaluate the matches we find and identify the validity and relevance of the provisions. Machines can handle these tasks increasingly better – until non-lawyers and less critical lawyers become the clients of machine owners. It might easily happen that the legal technology market will be taken over by international giants such as Google, Thomson Reuters (Westlaw), RELX Group (LexisNexis) and others. These developments cannot be stopped (and there is no reason to), but just as the creation of Estonian language machine processing tools is a concern for the Republic of Estonia, the state should also promote the machine-processability of Estonian sources of law.
Fortunately, the world is not ruled by just technocrats and in addition to the benefits of technical progress, we must also see the risks. The loss of privacy in the digital era is a very serious problem and the European Union is a global pioneer in protecting privacy.
The disclosure of personal data in a court decision violates the privacy guaranteed by the Constitution (PS) (§ 26), the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) (Article 8) and the Charter of Fundamental Rights of the European Union (charter) (Articles 7 and 8). One of the basic principles of data protection requires that personal data can be collected “as little as possible” (Article 5 (1)c) of the General Data Protection Regulation) and that data subjects should be guaranteed the right to be forgotten (Article 17 of the General Data Protection Regulation). The General Data Protection Regulation also requires that court proceedings and decisions be subject to data protection rules (Recital 20).
However, the right to privacy is not absolute. Both the Constitution, ECHR and the Charter (Article 52 (1)) allow interference of private life in the general interest and for the protection of the rights and freedoms of others. The General Data Protection Regulation provides for exceptions or possibilities for exceptions in the interests of the independence of the courts and administration of justice (Article 9 (2)f), Article 23 (1)f), Article 55 (3), etc.). It does not clearly appear from the materials for drafting the General Data Protection Regulation how to design judicial exceptions and the first disputes over this are still pending in the European Court of Justice.[9]
The principle of public access to justice intersects with the right to privacy. The publicity of court proceedings and decisions is required by the Constitution (§ 24), as well as by ECHR (Articles 6 and 10) and the Charter (second paragraph of Article 47). The purpose of this fundamental principle of the democratic rule of law is to protect, on one hand, the credibility of the judiciary and, on the other, the participants to the proceedings from arbitrariness of the judiciary.[10] Legal criticism of the court’s activities increases the legitimacy of the judiciary. The secret trial and truncated court decisions are dangerous for the parties to the proceedings and for society as a whole. The cutbacks should be kept to a minimum along with being well justified.
With a highly developed democracy and civil rights in the United States, the publicity of justice outweighs privacy, court decisions are personalized and publicly available and anyone can also access a court file digitally, by paying 10 cents per page.[11] Of course, there are exceptions and certain sensitive information (e.g. personal identification numbers, names of minors, home addresses in criminal matters, etc.) is covered in the files. Pseudonymization is quite complicated in practice,[12] but it has not given reason to the reduction of publicity. The United Kingdom, with its old judicial culture, has also given priority to the public administration of justice and does not follow the general standards of the General Data Protection Regulation when disclosing decisions.[13]
I also dare to argue in favour of the fact that the deletion of personal data from the published court decisions is not justified, apart from a few exceptions, or at least not justified by the planned pseudonymization with the above-mentioned development intention. Pseudonymization should be rather reduced. It should be accepted that justice is a public resource, the use of which involves a person’s public involvement in the case, or, if you prefer, every case has a potential opportunity to go down in history.
Ugly business
I imagine the following protests: well, the applicant or the complainant are starting a trial, they know the rules of the game, and in return for calling for state aid, they have to endure the public’s attention, but why should the defendant or the victim or witness tolerate the public? Or even if the accused has to endure attention for violating social peace, condemnation is not eternal and after a while the stigma should disappear.
The novel “Unfinished story” by the Russian poet and satirist Aleksey Apukhtin (1840–1893) includes a scene the variants of which can be found in Russian folklore about the theft of a cow, a goat, anything else or other suspicions.[14] Indeed, a person may be forced to take part in legal proceedings, for example as an accused or defendant, and although he or she gets justice, his or her name remains forever linked to a suspicious affair. In the digital era, finding a connection is a matter of seconds, but deleting personal data from the internet is far more difficult, often impossible.
In any case, the privacy of the persons involved in the legal proceedings and the interests of the trial must be weighed against each other. Just like privacy, the publicity of justice may be restricted in certain cases, among other things “if the interests of a minor, a spouse or a victim so require [non-public announcement of a court judgment]” (§ 24 (4) of the Constitution). According to the logic of effect of fundamental rights (and also the rules), restrictions should be necessary or proportionate in a democratic society, which means that public access to justice should be restricted as little as possible and as much as is absolutely necessary.
Probably no one disputes that many categories of people, such as minors, incapacitated persons, victims of serious violence and other vulnerable groups, need privacy in court proceedings and that certain data (e.g. health data, home addresses, etc.) should not be public. There are many names of cases marked with initials among the US and Strasbourg solutions. In the famous abortion law dispute Roe v. Wade[15] mentioned above, Jane Roe was in fact the complainant’s pseudonym.
As stated, the classification of personal data in judicial documents is technically complicated. The court sessions may be covered in the press or in social media. It is possible to derive related natural persons from the circumstances of the case with the help of other public data (same records, public registers, etc.). Literal compliance with the General Data Protection Regulation allows only the publication of pseudonymous judgments, hearings should be closed and files classified. Even a less augmented approach is not in line with the rule of law. Outright pseudonymisation is not only pointless and unconstitutional, but places an unnecessary burden on the courts.
Therefore, classification should be kept to a minimum, but if classification is justified in order to protect someone’s privacy, it should be done in an effective manner. The concealment of the personal data of a party to the proceeding should be decided as early as possible in the initial phase of the proceedings and the court file should be designed in such a way that the personal data cannot be found in the documents (pseudonyms and other markings have been agreed upon instead). The documents including personal data (so-called keys) are kept separate from other materials and these can be inspected by the representatives of the parties, but not by the public. The outlined solution is reminiscent of the measures to ensure the anonymity of witnesses in criminal proceedings (§ 67 of the Code of Criminal Procedure). Clear rules and technical measures are worthwhile, as the subsequent cleaning of documents from personal data is significantly more labour-intensive and may not be fully successful.
In all other cases the solutions should minimize the data classification. I emphasize that I am dealing with the processing of personal data in the courts here. Entrepreneurs, journalists, researchers and everyone else who have downloaded a judgment should in any case use these solutions in accordance with data protection rules (keep data in the European Union or in an equivalent place, collect and process data only when necessary, guarantee the rights of data subjects, including the right to be forgotten, etc.).
The press has a special status in data protection. The General Data Protection Regulation allows Member States to make exemptions for media in the processing of personal data (Article 85), as the freedom of expression and information outweigh privacy. In Estonia, for example, personal data may be disclosed in the media if there is a public interest, this does not unduly prejudice the rights of the data subject and is in accordance with the principles of journalistic ethics (§ 4 of the Personal Data Protection Act). It would be the opposite if the privileges granted to the press in covering justice could not be afforded by the judiciary itself and if citizens could not easily verify the information published in the press about victories and losses from the original source, i.e. the court decision.
In addition to the application of data protection rules, the state can mitigate the consequences of participation in public court proceedings in a number of ways, such as emphasizing the legal peace created by serving a sentence or enforcing a civil court decision and prohibiting discrimination against the participants to the proceeding. Such warnings may even be included in the text of published court decisions that have entered into force. Besides the right to be forgotten, human dignity requires also the right to understanding and mercy, and the state should guarantee this with its authority.
In conclusion, when considering rights and freedoms, personal and social benefits, it should be accepted that no one occurs in a court decision without a reason. If the decision is fair, it includes an authoritative assessment of the person’s actions: claim, complaint or accusation is either substantiated or unfounded. However, it is not worth overemphasizing an individual case. A person is valued by his or her life and activities as a whole. Christian Ackermann, who disregarded the guild regime, was the best sculptor in Baroque Estonia, and Hugo Kuusner may have erred in keeping the estate, but he remains the first public reader of the Declaration of Independence of the Republic of Estonia. Richard Handyside’s fine of £ 25 for publishing an inappropriate and provocative book remained in force in Strasbourg, but no one would raise an eyebrow at “The Little Red Schoolbook” today.[16]
There is also a possibility that the solution is not fair. In this case, history makes an assessment – not only of man but also of court – just as the poet Joseph Brodsky (1940–1996) has been judged and convicted of parasitism by Leningrad’s Dzerzhinsky District People’s Court. Poetry and translating poetry were not considered work by the court complying with the KGB order, but Brodsky was awarded the Nobel Prize in Literature in 1987.[17]
In both cases, court decisions should be as detailed as possible in order to draw conclusions. The names in the court decision remind the judiciary of its heightened responsibility in determining the fate of people.
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[1]Tallinn history book. Documents from the 13th – 20th centuries. T. Kala etc (compiler). Tallinn 2014, pp. 231–233.
[2] Christian Ackermann. Tallinn’s Phidias, Arrogant and Talented. T-M. Kreem etc (compiler). Tallinn 2020, pp. 56–65, 71–75, 80–82, passim; T. Kröönström. Masterpieces by Christian Ackermann. – Estonia’s story. P. Kriivan (ed.). Vikerraadio, 2 January 2021. Re-listen online: January https://vikerraadio.err.ee/1214008/eesti-lugu-christian-ackermanni-meistriteosed (30 January 2021).
[3] Minutes of the court session of the Criminal Division of the Supreme Court of 11 November 1939 and judgment of 25 November 1939, RA, ERA.1356.4.1329 (unnumbered).
[4] RKÜKo 17 March 2003, 3-1-3-10-02.
[5] According to the orthography dictionary the pseudonym is synonymous with “codename” and “cryptonym”.
[6] Intention to develop the Draft Act on Amendments to the Code of Administrative Court Procedure, Code of Criminal Procedure, Code of Civil Procedure and other acts (publicity of court proceedings) no. 20-1400.
[7] About the competition and its results, see online: https://oigus.ut.ee/en/admissions/towards-robot-judges and https://advokatuur.ee/est/meedia/uudised.n/eesti-esimese-oigusrobootika-konkursi-voitja-on-tudengitest-ja-ettevotjatest-koosnev-meeskond.
[8] See the study performed in 2019 by the Law Society. Online: https://www.lawsociety.org.uk/topics/research/lawtech-comparative-analysis-of-legal-technology.
[9] The case C-245/20 involves the dispute whether the supervision authority has the power to prescribe to the court how and what information may be disclosed to journalists about the ongoing proceedings, see the summary of the reference for a preliminary ruling of 29 May 2020 of Rechtbank Midden-Nederland (Netherlands). Online: http://curia.europa.eu/juris/showPdf.jsf?text=&docid=228941&pageIndex=0&doclang=ET&mode=lst&dir=&occ=first&part=1&cid=2209111 (31 January 2021). In another pending case Advocate General Michal Bobek has given a broad interpretation to the judicial function and recognized the judiciary’s own right to decide on the disclosure of procedural and file documents, see the Opinion of the Advocate General of 3 December 2020 in Case C-470/19 Friends of the Irish Environment Ltd v. Commissioner for Environmental Information, pp. 86 and 97, ECLI:EU:C:2020:986.
[10] See H. Sepp et al. Commentary on § 53 of the Constitution. – Ü. Madis et al. (ed.). The Constitution of the Republic of Estonia. Executive edition 5., revised edition Tartu 2020, § 24, comments 19–20 and 32. See online: https://pohiseadus.ee/sisu/3495/paragrahv_24. The commenters’ argument that the public announcement of a judgment (unlike public proceedings) does not affect the quality of the judgment cannot be entirely accepted. The court’s awareness of the publicity of the decision could increase the diligence in justifying the decision and thus improve the clarity of the decision.
[11] See the US Federal Courts Database. Online: https://pacer.uscourts.gov (30 January 2021).
[12] On the public nature of court files, see D.S. Ardia and A. Klinefelter. Privacy and Court Records: An Empirical Study. Berkeley Technology Law Journal 2015/3, pp. 1817–1828. Online: https://www.jstor.org/stable/26377582 (30 January 2021). The article examines the invasion of privacy associated with the publication of digitized court files based on the sample of the Supreme Court of North Carolina.
[13] See the privacy notice on the UK Courts page. Online: https://www.judiciary.uk/about-the-judiciary/judiciary-and-data-protection-privacy-notice/ (30 January 2021).
[14] See Apukhtin, A. An Unfinished Story (1888). Online: http://az.lib.ru/a/apuhtin_a_n/text_0100.shtml (01.02.2021): “[…] He stole some kind of fur coat, or something like that… – You are mistaken, countess; Sergejev did not steal anything, but on the contrary: his fur coat was stolen. Well, it doesn’t matter if he stole or was stolen from him … The main thing is that he was involved in a disgusting affair, une affaire de vol […]“.
[15] Roe v. Wade, 410 U.S. 113 (1973). Online: https://supreme.justia.com/cases/federal/us/410/113/ (31 January 2021).
[16] See EIKo 7 December 1976, Case of Handyside v. the United Kingdom, article 17, passim. Online: http://hudoc.echr.coe.int/eng?i=001-57499 (1 December 2021); for memories of the book’s content, reception, and court proceedings in England, listen to The Little Red Schoolbook – In Living Memory, 8/1. J.Jenkins (ed.). BBC Radio 4, 21.12.2008. Could be re-listened online: https://www.bbc.co.uk/sounds/play/b00c1d1k (1 February 2021).
[17] See the chrestomatic transcript of the Brodsky trial in Russian by journalist Frida Vigdorova, that was circulating in Samizdat. Online: https://polit.ru/article/2004/03/14/brodsky1/ (31 January 2021), and online in English: https://www.nereview.com/files/2014/01/NER-Vigdorova.pdf (31 January 2021); copies of judgments can be found online: https://www.fontanka.ru/2020/09/04/69454967/ (31 January 2021).