CCIN • Application of the right to be forgotten (dereferencing) and the right to privacy to publications in the Journal de Monaco (Deliberations n° 2024-71 and 2024-72 of 20 March 2024)

¤ Right to be forgotten - Dereferencing - Disciplinary sanctions published in the Journal de Monaco

Délibération n° 2024-72 du 20 mars 2024 portant recommandation sur l’évolution des dispositions conduisant à publier automatiquement certaines sanctions disciplinaires des personnels du Secteur Public au Journal de Monaco et la mise en œuvre d’un droit à l’oubli (recommendation on changes to the provisions leading to the automatic publication of certain disciplinary sanctions for public sector personnel in the Journal de Monaco and the implementation of a right to be forgotten) (JDM no. 8691 of 19 April 2024)

The CCIN recommends that Monegasque legislation be amended so that publication is an autonomous sanction which is not automatic.

The right to be forgotten should apply to the publication in the Journal de Monaco of Sovereign Orders dismissing a civil servant, which should be de-indexed from the Journal de Monaco website within a maximum of 2 years of publication.

This de-indexation measure must be applied to both future Sovereign Orders and those already published.

This recommendation also concerns all public entities for which disciplinary measures are published in the Journal de Monaco.

The CCIN considered that:

• in practice, for sanctions whose publication has been chosen, they should no longer be made indexable by search engines and the conditions for consulting a paper official journal should be recreated online. The digital Journal de Monaco would therefore only contain the sanction in the PDF version and would not be included in the indexed part that can be consulted online;
• in the absence of such a measure, the question of the right to be forgotten necessarily arises. Although Law no. 1.165 of 23 December 1993 on the protection of personal data, as amended, does not expressly provide for a right to be forgotten, the case law of the European Court of Human Rights (ECHR) does expressly recognise this right:
  • the right to be forgotten is intended to protect the right to respect for private and family life guaranteed by article 8 of the European Convention on Human Rights Rights, which includes the right to protection of reputation;
  • to assess whether the right to be forgotten should apply, the ECHR weighs up, in particular, the nature of the information archived, the time that has elapsed since the facts, the first publication and posting online, the contemporary interest in the information contained in the publication, the public's interest in accessing this information, the reputation of the person and the negative repercussions of the posting online on the person concerned, as well as the impact of the oblivion measure (on the criteria applied by the ECHR, see, for example, Gd Ch, Hurbain v. Belgium, judgment of 4 July 2023, Application no. 57292/16, §§ 200-211).
• the right to be forgotten applies to criminal convictions and should also apply to disciplinary sanctions;
• the fact that Sovereign Orders removing a civil servant from office are still referenced/indexed on the Journal de Monaco website for an unlimited period of time cannot be considered by the CCIN to be necessary to inform the public;
• this maintenance perpetuates the negative effects of the initial publication without any time limit, very often hinders the person concerned from seeking employment and thus damages his or her reputation without taking into account his or her current behaviour.

The Haut-Commissariat à la Protection des Droits, des Libertés et à la Médiation (High Commissioner for the Protection of Rights, Freedoms and Mediation) had recommended "that the Monegasque authorities proceed, if necessary after a reasonable period of time, with the anonymisation, limitation or dereferencing on certain search engines of decisions published online, such as the dismissal of civil servants, the publication of which is likely to cause disproportionate effects over time on the professional life of the persons concerned and in particular on their ability to find a job again" (Recommendation of 15 November 2023 on the dereferencing of personal data contained in a Sovereign Revocation Order).

Following complaints from several former civil servants, the CCIN requested that the Sovereign Orders concerned be dereferenced by search engines, which refused on the grounds that they were the subject of "continuous publication by an administrative authority". The CCIN also requested deletion directly from the operator of the Journal de Monaco website, which can de-index/dereference these Sovereign Orders, without success.

With regard to the publication of sanctions that can be indexed by search engines, the CCIN relied on Article R221-16 of the French Code of Relations between the Public and the Administration, which states that "In addition to the acts mentioned in Article R. 221-15, the following may only be published in the Official Journal of the French Republic under conditions guaranteeing that they are not subject to indexing by search engines: 1° Requests for change of name; 2° Judicial and legal announcements mentioning criminal convictions; 4° Administrative and disciplinary sanctions; 5° Decisions repealing or withdrawing a sanction mentioned in 4°."

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¤ Right to privacy • Limitation on the processing of data relating to health • Disability retirement measure published in the Journal de Monaco

Délibération n° 2024-71 du 20 mars 2024 portant recommandation sur la publication au Journal de Monaco des Ordonnances Souveraines et des Arrêtes Municipaux de mise à la retraite pour invalidité (recommendations on the publication in the Journal de Monaco of Sovereign Orders and Municipal Decrees concerning retirement on grounds of invalidity) (JDM no. 8691 of 19 April 2024)

Sovereign Orders and Municipal Decrees concerning retirement on grounds of invalidity, published in the Journal de Monaco, should no longer mention the reason for the retirement, but should simply state that the civil servant is entitled to claim his or her pension rights.

This recommendation also applies to all public bodies for which disability retirement measures are published in the Journal de Monaco.

The CCIN considered that:

• the fact of indicating in the Sovereign Order or Municipal Decree that retirement is due to invalidity constitutes processing of personal information revealing data relating to the health of the person concerned, which is prohibited in principle,
• this indication constitutes an infringement of the right to privacy (article 22 of the Constitution, article 22 of the Civil Code, article 8 of the European Convention on Human Rights, article 1 of Law no. 1. 165 of 23 December 1993 on the protection of personal data, as amended) in that it reveals one of the most intimate and sensitive aspects of a person's life, namely thestate of health and consequently the medical incapacity to hold a job; the dissemination of this type of information, in addition to causing personal and moral harm, may have significant objective practical consequences for the person concerned in their daily life,
• the indication of this reason in a document that has been made public and is widely circulated cannot be justified by any valid reason over and above the interest of the persons concerned in having their right to privacy respected:
  • third parties have no objective interest in knowing the reason for the official's retirement if it is the result of a medical finding that affects only the person concerned ;
  • third parties may only be interested in the fact that the civil servant is leaving the service, since the reason for leaving has no bearing on them;
  • none of the derogations provided for inarticle 12 of Law no. 1.165 of 23 December 1993 on the protection of personal data, as amended, should apply, as the public interest does not justify the publication of health data;
  • Article 54 bis of Law no. 975 of 12 July 1975 on the status of civil servants, as amended, and article 50-1 of Law no. 1.096 of 7 August 1986 on the status of civil servants in the Commune, as amended, do not require such publication;
  • the fact that the decision to retire on grounds of invalidity may be contested by the person concerned does not justify the inclusion of a medical reason in the relevant Sovereign Order or Municipal Decree. The decision to retire on grounds of invalidity is taken at the end of an adversarial process based on the state of health of the person concerned and may be notified to that person by any means, other than publication, which has a date certain and which may be appealed against by that person.

In the absence of Monegasque case law on the subject, the CCIN relied on a decision of the French Conseil d'Etat (M. A. c/ ministre de l'économie, des finances et de la relance, 10 June 2021, req. n° 431875) concerning the limitation of an online publication that indirectly revealed health data through the endorsements (decree of 25 August 1995 on the recruitment of disabled workers in the civil service; such information indirectly reveals that the persons recruited in this capacity suffer from a disability). The Conseil d'Etat ruled that this information "does not directly provide any information on the nature or seriousness of this disability and cannot, therefore, be considered as processing data relating to the health of the persons in question". However, it did consider that "it is therefore up to the competent authority, on receipt of a request to this effect, once the time limit for appealing against such an act has expired, to take measures likely to limit the processing of the data in question to what is necessary, by maintaining this publication only in the form of an extract which does not mention the legal basis of the appointment order".

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