Hertfordshire Law Journal, 1(2), 48-63
ISSN 1479-4195 online/ISSN 1479-4209 CD-ROM
48
Technology, Speech, Law & Ignorance:
The state of Free Speech in Sweden
Mathias Klang ([email protected])
Lecturer, Department of Informatics, University of Göteborg
Introduction
This article examines the ability of the law to deal with the effects caused by new technology.
The implementation of a new technological infrastructure affects many different aspects of
our society, especially important the law. This paper discusses in particular the effects of
Information and Communications Technology (“ICT”) on the free speech situation in Sweden
and also touches on the role ignorance plays in the law.
Like many countries Sweden is struggling to come to terms with the effects of new
technology on its legislation. The discussions tend to revolve around whether there is a need
for more and new legislation or whether older legislation can be adapted to better suit the
needs of the information society.
The overriding problem may not be one of law but one of power or politics1. The balance of
power within a society is not only a regulatory problem but it is an accepted form of power
between social forces. An excellent example of this balance is the development of the
freedom of speech within a society. Today there is a tendency within western society to speak
broadly about rights. Quite often the rights mentioned in casual discussion bear no
resemblance to the actual rights provided by law to individual citizens within a society.
The right to free speech or expression is one that has through its relatively brief history been
discussed and abused. Prior to the development and public dissemination of ICT, the right’s
contours could have been said to be resolved.2 If not resolved, one might argue that a
relatively stable form of status quo had been reached in most developed countries.
The new ICT has obviously not changed the law in any way but it has rebalanced power
within society. There have been public debates about the decline of public space in society3
and the rise of the power and control of private corporations as opposed to government. The
ability of the individual to present an unpopular message may not have been limited by law
but it was prevented by other means such as the corporate control of public media. To be able
to present a message to a greater audience a platform or infrastructure is necessary. In a
traditional society this infrastructure is the media. To gain access to mass media the cause of
the citizen must be deemed newsworthy by the private corporation.
The advent of ICT provided a new infrastructure for presenting messages to a mass audience.
This freedom to reach a larger group is a new re-balancing of power between those who have
media control and those who are attempting to gain access to the broader public.
1
Habermas J., The Structural Transformation of the Public Sphere, Polity Press 1989. Thompson, J., The Media
and Modernity, Polity Press 1995.
2
A longer argument on the role of technology and technological infrastructure in relation to the law is not possible
here. Suffice to say that the law must adapt to all new technologies and social change if it is to maintain its position
as an efficient dispute resolution mechanism.
3
See note 1 supra.
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The speech system in Sweden
The free speech legislation in Sweden is one of the world’s oldest. The legislation was
enacted after a political struggle in December 1766 and from this point almost all political
censorship was swept away, almost all official documents became accessible by the public
and every citizen had the right to publish them. This legislation established the freedom of the
press and incorporated it into the Swedish constitution.
Today the Fundamental Law on the Freedom of Expression (Yttrandefrihetsgrundlagen,
hereafter YGL) remains one of the four acts which makes up the Swedish constitution. These
speech rights have been supplemented and enhanced by the incorporation of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter
ECPHR) into Swedish law, in January 1995.
The main difference between the Freedom of the Press Act (Tryckfrihetförordningen,
hereafter TF) and the YGL is that the former deals with the printed word in the traditional
sense – books, newspapers and journals. The latter deals with all other media. However it is
important to note that the two pieces of legislation deal with the same issues in the same way
and are therefore often treated as being one legislative work.
The purpose of YGL is explained in the second paragraph of 1:1§ as having the purpose of
ensuring the free exchange of ideas, free flow of information and a free artistic expression. No
limitations to this can be made unless stated in the same act. To gain a better understanding of
the limitations one can look at article 5:1§ of YGL where one discovers that freedom of
expression does not cover those acts which have been criminalised in the
tryckfrihetsförordningen (TF). This means that acts that are criminalised under TF are also
deemed criminal acts under YGL and cannot be defended under the auspices of free
expression.
It is important to note that the list in TF, 7:4§ and 7.5§, is exhaustive and only the acts which
are listed in these two paragraphs have the ability to limit freedom of expression.4 Article 4
contains most of the criminalised actions.
4
The following translation of TF Chapter 7:4§ can be found on the Swedish Parliaments Website
<http://www.riksdagen.se/english/work/fundamental/press/index.htm>
Art. 4. With due regard to the purpose of freedom of the press for all under Chapter 1, the following acts shall be
deemed to be offences against the freedom of the press if committed by means of printed matter and if they are
punishable under law:
1.high treason, committed with intent to bring the Realm or any part thereof under the subjection of a foreign
power by violent or other unlawful means or with foreign assistance, or render the Realm dependent on such a
power, or detach a part of the Realm by such means, or by coercion and with foreign assistance induce or prevent
acts or decisions of the Head of State, the Government, the Riksdag, the Supreme Court or the Supreme
Administrative Court, insofar as the act implies a risk that the intent will be realised; any attempt, preparation or
conspiracy to commit such high treason;
2.instigation of war, insofar as a danger that the Realm will be drawn into war or other hostilities is provoked with
foreign assistance;
3.espionage, whereby, in order to assist a foreign power, a person conveys, consigns or discloses without due
authority information concerning defence installations, armaments, storage installations, import, export, mode of
fabrication, negotiations, decisions or any other circumstance the disclosure of which to a foreign power could
cause detriment to the total defence system or otherwise to the security of the Realm, regardless of whether the
information is correct; any attempt, preparation or conspiracy to commit such espionage;
4.unauthorised trafficking in secret information, whereby a person, without due authority but with no intent to
assist a foreign power, conveys, consigns or discloses information concerning any circumstance of a secret nature,
the disclosure of which to a foreign power could cause detriment to the defence of the Realm or the national
supply of goods in the event of war or exceptional conditions resulting from war, or otherwise to the security of the
Realm, regardless of whether the information is correct; any attempt or preparation aimed at such unauthorised
trafficking in secret information; conspiracy to commit such an offence, if the offence is gross, having particular
regard to whether the act involved assistance to a foreign power or was exceptionally dangerous having regard to
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This short presentation of Swedish speech regulation is flattering for the Swedish state, since
it presents the view that the Swedish position on free speech is historically well established
and firmly grounded legally. This also provides the impression that both by history, law and
culture, Sweden takes a liberal stance on speech and regards open debate as a necessity for
societal development. This would therefore provide for the position that a high level of
predictability supports the well-established system of free speech in Sweden and that courts
and society know what is permissible within this framework.
Part 1: The Virtue of Ignorance
There is a basic legal premise that ignorance of the law cannot be an excuse which relieves a
miscreant of responsibility for his actions. However, as we shall see in this paper, both
Swedish legislation and case law supports the position that corporations providing hosting
services are in a legally better position if they remain unaware of what is taking place on their
equipment. This obviously stands in stark contrast to the position taken by the law on the
necessity of citizens to be aware of all legislation.
The Aftonbladet Case
The newspaper Aftonbladet was founded in 1830 and started its website in 1994. The
company that owns the newspaper runs its web newspaper via a subsidiary. The subsidiary
has its own editorial staff. The web newspaper contains both material from the printed
an existing state of war, or concerned circumstances of major significance, or if the offender disclosed information
entrusted to him in conjunction with public or private employment;
5.carelessness in the handling of secret information, whereby through gross negligence a person commits an act
referred to in point 4;
6.insurrection, committed with intent to overthrow the form of government by force of arms or otherwise by
violent means, or induce or prevent by such means acts or decisions of the Head of State, the Government, the
Riksdag, the Supreme Court or the Supreme Administrative Court, insofar as the act implies a risk that the intent
will be realised; any attempt, preparation or conspiracy to commit such insurrection;
7.treason or betrayal of country, insofar as a person thereby, when the Realm is at war or provisions of law relating
to such offences otherwise apply, misleads or betrays persons active in the defence of the Realm or induces them
to mutiny, break faith or lose heart, or betrays property of significance for the total defence system, or commits
any other similar treasonable act which is liable to cause detriment to the total defence system or which involves
assistance to the enemy; any attempt, preparation or conspiracy to commit such treason or betrayal of country;
8.carelessness injurious to the interests of the Realm, insofar as a person thereby through negligence commits an
act referred to in point 7;
9.dissemination of rumours which endanger the security of the Realm, whereby, when the Realm is at war or
provisions of law relating to such offences otherwise apply, a person spreads false rumours or other false
statements liable to endanger the security of the Realm, or communicates or promotes the communication of such
rumours or statements to a foreign power, or disseminates among members of the armed forces false rumours or
other false statements liable to provoke disloyalty or to dishearten;
10.sedition, whereby a person exhorts or otherwise seeks to encourage criminal acts, neglect of civil obligations,
disobedience to a public authority or neglect of duty incumbent upon a serving member of the armed forces;
11.agitation against a population group, whereby a person threatens or expresses contempt for a population group
or other such group with allusion to race, colour, national or ethnic origin, or religious faith;
12.repealed;
13.unlawful depiction of violence, whereby a person portrays sexual violence or coercion in pictorial form with
intent to disseminate the image, unless the act is justifiable having regard to the circumstances;
14.defamation, whereby a person alleges that another is criminal or blameworthy in his way of life, or otherwise
communicates information liable to expose another to the contempt of others, and, if the person defamed is
deceased, the act causes offence to his survivors, or might otherwise be considered to violate the sanctity of the
grave except, however, in cases in which it is justifiable to communicate information in the matter, having regard
to the circumstances, and proof is presented that the information was correct or there were reasonable grounds for
the statement;
15.insulting words or behaviour, whereby a person insults another by means of offensive invective or allegations
or other insulting behaviour towards him.
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newspaper and its own material. The web newspaper also included a discussion forum where
members of the public could express their views on current events and discuss recent articles.
According to the instructions, the editorial staff would first view the views being expressed,
and racist, sexist or other illegal material would not be published on the site. The idea of this
forum was to allow the readers to partake in a broad public debate on current events.
After publishing an article on the situation in the Middle East, the forum carried four antiSemitic messages. These messages remained online between 9 October and 17 October 2000.
There are a few anomalies in the Swedish approach to TF and YGL cases. Firstly, these cases
are tried in front of a jury. Secondly, the Chancellor of Justice (Justitiekansler) is the only
public prosecutor with the authority to try these cases. Thirdly, the law includes an instruction
to the court that the importance of free speech and press must be preserved and therefore the
court should strive to free the accused.
The Chancellor of Justice brought charges against the newspaper’s publisher. The crime was
“agitation against a population group” (TF Chapter 7:4§ point 11). The Chancellor wrote in
his formal charges that each of the four statements could be deemed to be threatening or
disparaging towards a defined group.
In court, the newspaper admitted that the four messages had been present on the website and
that they could be seen as agitation against a population group. They however denied
responsibility due to technical difficulties in censoring and removing the messages. The
newspaper claimed that they had done everything within their power to prevent the messages.
The purpose of the web forum was to provide an arena for a broad public debate without
undue censorship while at the same time preventing certain messages of a too aggressive
content. The newspaper received several thousand messages per day and employed four
veteran retired journalists to vet the messages. The editorial staff of between 40-45 people
also spent between half an hour to an hour per day checking messages. According to the
newspaper, therefore, there could only be a minimum of control and offensive messages may
at times slip through the net.
Furthermore, a series of unfortunate events led to the fact that the messages were not
promptly removed: the chief editor was unavailable, the complaints that the messages were
online were sent to the parent company instead of the subsidiary involved and a
malfunctioning computer added to the length of time involved before the messages could be
removed.
The district court of Stockholm (Stockholms Tingsrätt) found that the four messages could be
deemed to be cases of agitation against a certain population group.5 The publisher has under
Swedish law full responsibility and only under extreme circumstances can this responsibility
be avoided,6 which was not deemed to be the case in this situation. The publisher was well
aware that the control over incoming messages was not adequate to prevent racist, sexist or
other illegal messages from appearing on the forum. Neither could the technical difficulties be
seen to absolve the newspaper from responsibility. The court questioned how the technical
difficulties could have prevented the messages from first appearing online. The fact that
technical difficulties prevented the removal of the messages was not seen to carry any weight
since the crime was already committed.
5
Stockholm General Court (Stockholms tingsrätt) dom 2002-03-07, mål nr B 7655-00. Daniel Westman, Ansvaret
för debattforum på nätet, Lov&Data nr 70 (juni/juli 2002) s. 3-7.
6
Supreme Court decision NJA 1991 s. 155.
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The crime of agitation carries a maximum penalty of two years unless the crime is seen as
being of lesser significance, in which case a fine is applicable. The court found that the crime
was of significance since the web site is visited by 600 000 people per day. The judgement
was a suspended sentence and an income-based fine. The newspaper has not appealed the
case.
Comments
The case is a good reflection of the laws of press freedom and free expression when related to
the Internet.
Since the newspaper was de facto able to prevent publication of comments and after
publication remove the offensive messages it maintained editorial control. The fact that the
level of control was inadequate is not a valid exception and therefore the newspaper is
responsible.
Up until this point everything is fine. The law has been applied to a new situation and it has
been interpreted in a logical and well-defined manner. However, there still remains a nagging
feeling of inadequacy over the whole situation of responsibility over messages transmitted via
electronic media.
Today, the Aftonbladet site no longer has an online forum where any discussion of articles
can take place. The web newspaper still maintains its policy of reader interaction and provides
for a web chat to be available. This chat is, however, not concerned with any discussion of
current events and since it is instantaneous communication between anonymous Internet users
contains all types of messages.
Online Forums
The responsibility for un-moderated7 online forums has been examined both in the Swedish
courts, Swedish legislation and EU directive. The Supreme Court of Sweden examined this
question in what has become to be known as the BBS case.8 In this case, the accused was
charged with copyright infringement by making available a program on his BBS9 that could
be copied by the public. The purpose of his BBS was however to function as an electronic
post box and as a storage place for freeware programs. However, certain available programs
were not freeware and as such, downloading them could be copyright infringement. The
Supreme Court stated that the crime of copyright infringement required active participation –
such participation could not be considered to have taken place. The fact that the system
operator had attempted to limit the public access to the copyrighted programs could not result
in a legal punishment since this would mean that attempting to limit or prevent crime would
result in more blame than those who did nothing at all.
This case was not as clarifying as one would hope, since the public prosecutor’s description
of the actions of the accused were such that the court could not find the accused guilty of
copyright infringement. This decision of the Supreme Court has been criticised heavily,10
especially since the Supreme Court required active participation that is not consistent with the
7
The un-moderated forum is where there is no prior control over the messages posted online.
NJA 1996 s 79.
9
A Bulletin Board System is an online service that allows callers to send and receive data in the form of e-mail,
post & read messages under forums, upload and download files, have live chat conversations with other callers
(public and private), play online games etc.
10
Rosén, BBS-målet och ansvaret för elektroniska förmedlingstjänster, SvJT 1996 s. 414 och Karnell, HD i
parkeringsficka på den elektroniska motorvägen, NIR 1996 s. 310
8
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Supreme Court’s decisions in other circumstances. It has also been criticised for the fact that
the case was a criminal case that requires strict adherence to the legality principle, so the
outcome might have been different if the case had been based upon a civil claim.
The BBS law11 was enacted as a reaction to the aforementioned case. The law was enacted in
1998 and places a duty of supervision and control on those who provide electronic bulletin
board services. This duty is followed by a duty to remove criminal messages. Neglecting the
removal of these messages can lead to fines or imprisonment.
In addition to this, the E-commerce Directive12 in article 14 explains that those providing a
host service shall not be burdened with criminal responsibility for messages sent by the users
if two conditions are met: (a) the provider does not have actual knowledge of illegal activity
or (b) upon receiving knowledge the provider acts expeditiously to remove or to disable
access to the information.
This approach leaves much to be desired. The legal position in Swedish case law and
legislation, and in EU directives, is pushing towards the virtue of “turning a blind eye” or “see
no evil.” This does not promote any kind of civic responsibility from those who maintain web
hosting services. Disincentives for civic responsibility cannot be considered to be the basis of
a socially beneficial legislative approach.
The Common Law Approach
If one were to look at the situation internationally, there have been a large number of cases
concerning messages in online Internet forums. The cases based on defamation, despite the
difference in the criminal offence, seem to follow a pattern similar to the Swedish experience.
The first major case of Internet defamation was Cubby v. CompuServe13 in which the plaintiff,
Cubby Inc, claimed damages for a message posted on the electronic magazine, "Skuttlebut",
located on the CompuServe online forum called "Rumorville". Cubby claimed that
CompuServe was to be seen as a publisher of the defamatory material and therefore liable for
the content. CompuServe argued that since they did not review the messages before they were
posted they were to be seen as a bookstore or library, which cannot be held accountable for
the content of the material held in their possession. The court found that since the material
was not reviewed, Compuserve was by analogy a distributor (such as a library or bookshop).
CompuServe was relieved from the liability that a publisher would face.
This case provided a brief sense of security for those maintaining online forums until the case
of Stratton Oakmont v. Prodigy.14 There, a New York state trial court ruled that the ISP
Prodigy Services Company may be liable for potentially defamatory statements made by one
of its users. The plaintiff Stratton Oakmont, Inc., a securities investment banking firm, sued
for statements made by an anonymous mailer on Prodigy's Money Talk bulletin board. The
statements claimed that Stratton Oakmont committed criminal and fraudulent acts in
connection with the initial public offering of stock of Solomon-Page, Ltd. Prodigy argued that
they should not be held responsible for the posting but the court disagreed. The court held
that Prodigy had editorial control over the messages in the Money Talk forum and was
therefore liable for the content of those messages. According to the New York Supreme
Court, Prodigy's practice of systematically monitoring messages made it liable for the content
of these messages. The control Prodigy used was in two parts. The first was a screening agent,
11
Lagen (1998:112) om ansvar för elektroniska anslagstavlor (Law of responsibility for electronic bullitin boards).
Directive 2000/31/EEC on certain legal aspects of information society services in the Internal Market.
13
Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991)
14
Stratton Oakmont, Inc. v. Prodigy Services Inc., 23 Media L. Rep. 1794 (N.Y.Sup.Ct. 1995).
12
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which searched for offensive messages and warned against them. Second, Prodigy used a
system of "Board Leaders," which were users with the authority to remove messages from the
discussion.
Zeran v. America Online15 came next. In Zeran, an anonymous mailer posted messages on a
bulletin board operated by the defendant America Online. The messages advertised the sale of
t-shirts and other items with slogans glorifying a terrorist bombing in Oklahoma. The
messages gave the name and telephone number of the plaintiff whom had no involvement in
the merchandise or the messages. Mr Zeran contacted America Online to remove the
messages and take steps to prevent reposting. Despite removal, the notices were reposted on
numerous occasions over a period of three weeks. The court found for the defendant and
allowed the defence based upon the Communications Decency Act of 1996, which protects
ISPs by providing them with immunity from responsibility for online content. The court ruled
that 47 U.S.C. §230 "plainly immunizes computer service providers like AOL from liability
for information that originates with third parties." This decision effectively reverses the
position after Stratton Oakmont v. Prodigy.
In the case of Godfrey v. Demon Internet Ltd.,16 a message was sent from the United States by
an unknown poster who was not a Demon customer, but sent the message via Demon’s
servers. This message was posted in a virtual chat room. The message, which contained
damaging allegations, appeared to be from Mr. Godfrey but was in fact a forgery. The court
disallowed the defence of “innocent dissemination” and found Demon guilty of libel.17
Demon chose not to appeal the decision.18
Ignorance pays
While the approaches to the problem of online information may differ, there is a strong
message being sent out from the courts and legislators – ignorance and indifference pays. Any
pre-publication review leads to a higher level of responsibility for the moderator or host
provider.
Once again we see the inclusion of legal disincentives for any attempts at civic responsibility.
Any attempt, no matter how insignificant, from the web host to provide a level of service
immediately places the provider in a worse position than if he were to do nothing at all. It is
strange that the person attempting to maintain a clean standard should be punished, while
those who do not are not responsible. The basis of responsibility should not be on the effort
but rather upon the result of the activity or lack of activity.
Part 2: The Curse of Ignorance
The most important privacy case to limit Swedish freedom of expression in recent history is
the Ramsbro case. 19 Mr Ramsbro was charged with placing confidential and other personal
data on the Internet. This was an offence, since he had not obtained prior permission from the
Data Protection Officer as was required by The Data Act (1973). The Swedish Supreme Court
held that the contents of Ramsbro’s website fell within one of the exceptions in the Personal
Data Act (1998) which exempted journalists from liability. Ramsbro was not therefore guilty
of criminal transfer of personal data out of Sweden.
15
Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997).
Case No: 1998-G-No 30. Online http://www.courtservice.gov.uk/godfrey2.htm (Last viewed 990802).
17
Glave, J. Sweeping UK Net Libel Decision. Wired News 26 March 1999.
18
Sprenger, P. Demon Lets Libel Ruling Stand. Wired News 9 June 1999.
19
Swedish Supreme Court, Case B 293-00, June 2001.
16
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The events leading up to the case were that Mr Ramsbro launched a web site containing a
forum whose stated aim was to throw light on the damage caused by banks, finance
companies and individual capitalists before, during and after the bank crises. Its purpose was
to spread knowledge, experience and advice so as to prevent a repetition of the largest social
scandal of its kind. Personal data relating to individuals in these financial institutions was
published on the website.
The personal data consisted of was the names of the individuals involved. The names were
placed under a page with the heading “the pillory”. The page also included descriptions of
what their role was in the bank crisis.
The prosecutor charged Mr Ramsbro with placing material on the Internet which violated
personal integrity and contained personal data during the period February – October 1997
without consent from the Data Protection Officer as was the law prior to the new Personal
Data Act. The Supreme Court focused only on the question of whether Ramsbro was guilty of
criminal transfer of personal data out of Sweden through publication of this information on
the web site.
Protection of Data Act (1998:204) has replaced the regulations governing the transfer of data
abroad since the time of the alleged offence in 1997. Under the Swedish Penal Code
(1964:163) (5§) crimes are only punishable if they were criminalised at the time of the action.
Furthermore, if another law is applicable at the time of the court judgment, then the new law
shall be applied if the result is a lighter sentence. Therefore Ramsbro could only be found
guilty if his actions did not fall under the exception found in the new Protection of Data Act.
In reaching their decision, the Court had to interpret the exemption from criminal liability for
journalism found in 7§ of The Protection of Data Act. To interpret the scope of the term
‘journalism’ the court looked to Article 9 of Data Protection Directive and Articles 8 & 10 of
the ECPHR, which is incorporated into Swedish law. The Personal Data Act recognises that
other legislation has precedence and therefore the ECPHR should have precedence over the
Personal Data Act. The court also considered the importance of information in public debate,
the distinction between private/public life in relation to free speech and the Danish
implementation of the directive, particularly its interpretation of journalism. Finally, it
considered the preparatory works to the Personal Data Act that stressed protection of
established and serious journalism.
The court did not consider that the term ‘established and serious journalism’ should be treated
as exclusive. It instead concluded that protection should be offered to a wider circle. It held
that the contents of Ramsbro’s web site could fall within the scope of the term “journalism”
and therefore be afforded protection from liability. By its decision, the court moved away
from the concept of journalism as being solely accredited newspapers to a position that any
activity aimed at generating public opinion would suffice.
This case highlights the difficulties of balancing the rights of freedom of expression and the
right to privacy of personal data. The European Convention of Human Rights, which has
been implemented in Sweden and more recently the UK, provides for the right to freedom of
expression (Article 10). The Ramsbro case addresses the difficulties in balancing the right to
freedom of speech with the Data Protection Regulations.
The Data Protection Directive requires anyone processing personal data to obtain the explicit
consent of the data subject to manipulate personal data in any way (including transferring it
outside the EU). Since personal data according to the law is anything, which directly or
indirectly points out a living person, then any name is treated as personal data. The effect of
this is that any web page containing names, pictures or any other personal data used without
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the consent of the data subject is illegal. This may stifle ‘legitimate’ criticism of an individual
as no criticism can be made without the express consent of the person.
This case highlights the particular problems with the implementation of the Directive in
Sweden. The Swedish legislators, when implementing the Directive in the Protection of Data
Act in 1998, took rather an authoritarian approach. The Directive did not require Member
States to introduce legislation as repressive as the Personal Data Act. Instead each Member
State was required to adapt the directive to national requirements. Other Member States have
taken a less strict approach.
Prior to the Ramsbro case, the Personal Data Act had been used by the Data Protection Board
to prevent web activities claimed to be infringing personal integrity. After the Supreme
Court’s decision this will no longer be possible as the decision has improved the status of free
speech in Sweden. Within their professional roles public figures (and this would today
include bank directors) must be prepared to accept public criticism. The ruling of the
Ramsbro case also discussed how to protect the victims of speech and reasoned that damaging
speech should not be curbed via privacy regulation but rather by defamation rules. This may
in turn lead to an increase in the number of defamation cases.
However, there still remains a great deal of uncertainty for the position of Swedish free
speech in private life. The Ramsbro case only clarified the position when citizens can discuss
public life. In the Lindqvist case, an action was brought against a woman who posted a
message on a web page about her colleague, stating that she was not working full time since
she hurt her ankle. This case is at present at the Court of Appeals.
The Lindqvist20 case concerns a woman (Mrs. Lindquist) who worked with children about to
take their confirmation in a church in a small Swedish town. She had learnt how to make
home pages during a computer course and made a page for the church. The church page
presented the activities of the church and the people who worked there.
Mrs. Lindquist presented the information about the people in a humorous way. About the
Verger, Mrs. Lindquist wrote that the Verger had fallen from a ladder, injured her foot, and
was now only working half time.
The Vicar spoke to her about complaints about the page six days before Christmas in 1998,
and Mrs. Lindqvist removed the page. The Church council, after consulting the diocese
lawyer, decided that Mrs. Lindqvist should be removed from her post. Mrs. Lindqvist wrote
to her confirmation students and informed them; in reaction to this the Church wrote to the
students and explained that Mrs. Lindqvist was a criminal and a liar.
Mr. Lindqvist then turned herself in to the police. She did not see herself as a criminal and
hoped to be exonerated by the authorities. In 2000, the prosecutor informed Mrs Lindqvist
that criminal charges were to be made against her. Mrs. Lindqvist lost in the general court
(tingsrätten). The prosecutor stated that every person with some kind of common sense
would have been aware that Mrs Lindqvist’s actions constituted a criminal offence. The
Verger was never questioned as to whether she felt that her integrity had been violated and
has not claimed the compensation which the law allows.
Mrs Lindqvist has appealed the court decision to the Appeals Court. This court has contacted
the EU court in Luxembourg for its advice.21
20
Eksjö General Court (tingsrätt), Case B809-99.
Case C-101/01 Bodil Lindqvist v Åklagarkammaren i Jönköping Preliminary ruling at Göta Appeals Court (Göta
Hovrätt) concerning the interpretation of Directive 95/46/EC of the European Parliament and of the Council on the
21
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The Advocate general Antonio Tizzano supported Mrs. Lindquist in his proposal for
judgement presented in September 2002. He stated that the page did not violate the data
directive. The Swedish government wrote a letter questioning the suggested decision of
Tizzano - but the court refused to receive the letter since they do not admit any new evidence
after the oral hearings. This case is still unresolved.
Neo-Censorship
While the cases discussed above have given rise to a large amount of publicity, there are
many other cases that have not reached the courts. Instead, the Swedish Data Inspection
Board handles many Internet-related speech issues. This organ is a public authority whose
role is “to protect the individual's privacy in the information society without unnecessarily
preventing or complicating the use of new technology”.22
Through the implementation of the Data Directive, the Personal Data Act (1998) was enacted.
This replaced the earlier legislation (the Data Act (1973)). Swedish principles of law do not
allow constitutional law to be limited by lesser legislation. Moreover, the Personal Data Act
specifically states that freedom of speech should not be limited by the implementation of this
law. Nonetheless, this has not been the result.
The praxis of the Swedish Data Inspection Board has been both patchy and hard to
understand. However it has become clear that the Board has in many ways limited the
freedom of expression of Swedish citizens despite protection from the constitution, the
limitations in their own mandate and the European Convention for the Protection of Human
Rights and Fundamental Freedoms.
Censored Pages
It is impossible in the framework of this paper to even attempt to present an exhaustive list of
the cases handled by the Swedish Data Inspection Board. It is important to note that the Board
is not a court and does not require court hearings from the parties. It may act independently
but often reacts to complaints from the public. In operation, the Board makes an initial
judgement of the webpage. The site administrator can be given the opportunity to remove the
offensive material. Otherwise the Board can decide to send the case either over to the General
Courts or to the Administrative Court system. This government body therefore is key in
deciding which information can be displayed in Swedish on the web.
The Data Inspection Board did not see accusing a politician from an opposing political party
of economic irregularities in a chat on a political party site as acceptable. The Board did not
take any further action since the comments had already been removed. 23 The society for the
elimination of fur industry had a web site that listed names and addresses of companies
involved in the breeding of animals for fur to which the Board objected.24 A parent published
public documents concerning the custody of the children, where all names were made
anonymous except for the parent who owned the site. The Data Inspection Board felt that the
site was in conflict to the Personal Data Act since the identities could be guessed since the
name of the writing parent was not anonymous,25 although the public prosecutor of the
protection of individuals with regard to the processing of personal data and on the free movement of such data in
relation to the Principle of freedom of expression (European Convention Article 10).
22
From the website of the Swedish Data Inspection Board <http://www.datainspektionen.se>
23
Christoph Andersson, Vad man får och inte får publicera på Internet, Statstjänstemannen nr 4, mars 2000.
24
Ibid
25
Ibid
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general courts dropped the charges.26 A website containing pictures from a party showed
several guests. One guest complained to the Board, which contacted the page administrator
who quickly removed the pictures. In light of the quick removal no further action was taken.27
The Board deemed a site criticising a dog breeder and a veterinary surgeon for participating in
the breeding of animals for the purpose of animal medical testing to go against the Personal
Data Act. The Board has requested police assistance in discovering who is responsible for the
site. The case has now been dropped since the site is based in the United States and the police
will not cooperate with the requests of the Swedish police as the site is protected by American
free speech regulation.28
Privacy and integrity are broadly defined under Swedish law. Despite changes to the Personal
Data Act allowing harmless data to be placed on the Internet without prior consent, the
implementation of the legislation has taken on a behaviour which looks and feels very much
like censorship. The Lindqvist case takes on an added dimension as the public prosecutor in
the case claimed in court that the actions of Mrs Lindqvist were not only criminal but that
“any person with any kind of common sense would know that these actions were criminal.”
Mrs Lindqvist only wrote that a co-worker had injured her foot and was only working part
time. This information was in the public domain and undisputed.
There has been little public debate on the role of integrity and the purposes of the law. The
Swedish implementation of data protection has entailed hardships and censorship for many
Internet-based sources and continues to do so. It is questionable whether the situation will
change prior to decisions by the European courts disagreeing with the overly harsh
implementation of the data directive.
Evading Censorship under Swedish Law
As the dog breeder/animal rights example above illustrates, criminal responsibility can be
effectively avoided by placing information anonymously on servers outside Sweden. Neither
the Board nor the Swedish police have the mandate to carry out investigations outside the
borders of Sweden and therefore must rely on the collaboration of the local police.
In the last example, the case concerned a website devoted to animal rights and to protecting
animals against being used for medical experiments. Animal rights has successively been
gaining more ground and today such rights have an established position the public domain
thanks to such philosophers as Peter Singer and Tom Regan29. However, animal rights
organisations do not have media access in the same way as do other organisations and as such
are more sensitive to issues of free speech. Those organisations that are not deemed to be
politically correct have traditionally been forced to use alternative methods to distribute their
messages to a broader public. Once the broader market has been reached, the more politically
correct a message or an organisation becomes.
The Internet provides a cheap method for publicising a message to a broader audience. The
use of foreign service providers has also been a traditional approach to evading local
legislation. The use of American sites to bolster a message directly intended for the Swedish
audience is a method that effectively circumvents Swedish legislation. The reliance on the
American marketplace of ideas means that those who are concerned with eventual reprisals
within the own country can and will actively use foreign service providers.
26
Christoph Andersson, Pastafest pest för Datainspektionen, Statstjänstemannen, nr 1, januari 2001.
Ibid
28
Ibid
29
Singer, P. Animal Liberation, Pimlico 1995. Regan, T. Defending Animal Rights University of Illinois Press
2001.
27
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There are other methods that can be used to evade reprisals and that bolster free expression
online. An organisation or individual which runs the risk of breaching Swedish privacy
legislation or other legislation limiting free speech does well to plan ahead. The best method
is to start publishing a periodical with a website connected to it. This is done by first
contacting the Swedish Patent and Registration Office where you can request to start a
periodical and notify it of the responsible publisher. To be approved the publisher must be of
age and not be bankrupt. The periodical must be printed four times a year and can be done as
a stencilled newsletter. Once approved you have the same status as any other newspaper
publisher.30
The next step is to contact the Swedish Radio and TV authority and register the intended web
site as a supplement to the published periodical.31 Once these two stages have been carried out
the website is officially a newspaper and the exceptions to the Personal Data Act apply. This
means that anything that is published on the site cannot be criticised by the Swedish Data
Protection Board. Additionally the registration at the Radio and TV authority also works
retroactively and the registration grants immunity even for sites created years ago. In addition
the website and its writers also have additional protection from governmental intrusion
provided to all periodicals. One important such protection is the protection of sources of
information.
There have been complaints about the system of online free speech. To meet these demands,
the government has instituted changes whereby it is no longer necessary to create the illusion
of the periodical. However, those changes have been under discussion. The protection has
been intended for the websites of companies and organisations but there is a debate about
including the web sites of private citizens in this protection. This system has been in place
since January 2003 and costs 2000 SEK or approximately £142. The question is, however,
whether this most recent change does anything to improve the situation of free expression in
Sweden.
The Ramsbro case has confirmed that, to a certain level, free speech is available even without
registration. However, this is limited to discussing the public lives of public figures for the
purpose of informing society. The privacy law make it difficult for anyone wishing to discuss
subjects outside these narrow limitations.
Whether one registers a site or starts a periodical the protection of free speech entails that the
state via its authorities cannot work to prevent free expression unless authorised by YGL. The
registration of sites made possible from the beginning of this year was heralded as the
broadening of free speech in Sweden.
The protection is available in three basic situations:
1. Websites and similar services where the users can directly see the changes made on
the site but do not have the ability to change the content of the site.
2. Push-services – tailor made solutions from databases which are sent to those who
order the services in advance.
3. On-demand services – databases where the user orders services.
Registration is available for those services under the following conditions: (1) that the
services are available to the general public (2) the users cannot affect the content which
immediately becomes available to the users (3) the service has some connection to Sweden
30
31
The cost of this is 2000 SEK or approximately £142.
The cost here is 150 SEK or approximately £9.
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(4) a publisher has been registered and finally (5) the service has a name that cannot be mixed
up with similar services.
Part 3: Conclusions
When attempting to draw conclusions from a group of cases such as this, it is important to
remain focused on the root of the problem. The root question is the limitation of free speech
in Sweden. The implementation of data protection legislation is being used in such a way as
to limit online freedom of expression for those who are unaware of the fact that they are
acting in a criminal manner. The limitations do not apply to the media, nor to any corporation,
organisation or individual who decides to organise itself and to prepare itself in advance. This
in turn leads us on to two different problems. The first being – whether rights are intended for
individuals or for organisations? There has been a growth of the concept of rights for
organisations but despite this popular view, rights are not inherently part of organisations.
Human rights are connected to individuals. A further discussion of whether organisations,
animals or environment can be invested with natural rights goes beyond the scope of this
paper.
A much more serious, and for this paper relevant, problem is the lack of spontaneous
protection awarded to the Swedish people while creating personal web pages. The law as it is
limits the web pages to content not connected to discussions of other individuals or
discussions solely concerned with the public lives of public officials. This situation is not
satisfactory.
A requirement of a well-functioning legal system is that there is a certain level of
predictability within the system which allows those who work and live within the system to
function without experiencing too high a level of insecurity. Since the dispersement of new
technology is a problem faced by all legal systems, a question can be posed as to whether one
system is better than the other in facing the unpredictable results of the effects of a new
technology on society.
Is predictability a problem?
According to Bentham, countries that desired a greater level of predictability within their
legislative systems were apt to choose civil law, while those who desired that the courts have
a greater level of flexibility would be more interested in the common law approach.32
It would be wrong to espouse the virtues of one system without a balanced approach. It is
therefore important to realise that both systems have strengths and weaknesses that make
them better at resolving certain issues. The civil law system is more rule-based and
positivistic in its nature and as such it is not particularly adaptable. The common law system
is seen to be more the flexible, but at the same time this flexibility comes at the cost of not
being able accurately to predict the decisions of the courts. In truth, both systems are more
subtle and less rigid than this explanation, but for the purpose of this work, the polarisation of
the two systems is a useful illustration.
Parallels can be drawn to the discussion on organisational forms that argue the virtues of
different organisational systems such as hierarchies or markets. The result of this work33 can
be crudely summarised with the arguments taken from transaction cost theory that the market
32
33
The Works of Jeremy Bentham
Weber, Williamson, Ouchi and Ciborra
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is more agile and prepared to meet new challenges while the hierarchy is better at handling
repetitive tasks at a lower cost.
If we look for this in the difference between civil and common law, it is almost impossible to
achieve an exact calculation for the more cost efficient system of justice. Should we be able to
arrive at a conclusion which system was the more cost efficient, the answer could be made
moot by arguing (in the same way as those who criticise the school of law and economics)
that the purpose of law is justice and not efficiency.
It can be claimed that within civil law systems the ability of the courts to change or create law
is limited, since the courts are only interpreters of statute and should attempt to discern the
wishes of the legislator. This system is designed to provide a greater amount of predictability
and to maintain the role of the courts as civil servants under the control of the legislator.
Under the common law system the courts seem to have a greater leeway and are able to act
more independently of the legislators. This may provide a system that does not establish a
great level of predictability. However this apparent lack of predictability is seldom seen as a
problem.34
From this we can draw a general conclusion that it is not the legal system that is the problem.
This conclusion can also be supported in the wealth of legal cases resolved in the many
jurisdictions attacking the problems of a new technical infrastructure. We can quickly see that
the problem is more one of culture, history and tradition as opposed to a pre-established legal
order. The legal order can be seen to serve its political order and therefore adapt reasonably
well to the new technology.
Final Remarks
In the early days of the Internet the discussions often revolved around the metaphor that
should be applied to the new technology. The importance of this choice must be appreciated
since within this metaphor lies also the ability to analogise and to therefore measure the level
of responsibility of those involved.
For the service provider (or as they now are often referred to the hosting party), this was
especially important since it is this group which tends to be the main target of both legislative
and/or civil action. The discussion therefore revolved around concepts of this party being a
publisher, library, innocent carrier or something completely new. At present the service
provider is seen to be some kind of library or bookshop and therefore not responsible for the
content of the books or magazines they choose to provide. However this is not always clear
and in some case responsibility for content has been ordered. This has led to a side effect that
the safest possible course of action for a service provider is to know as little as possible about
what is taking place within ones own servers. This is at least the position when it comes to
harmful speech. However if this paper was to concern itself with the copyright issues, it
would be a completely different matter, since hosting copyright-infringing material or even
links to programs which can be used to infringe copyright is deemed to be the responsibility
of the host even if there is no knowledge involved.
Even more damaging, however, is the fact that speech is being limited for those who have the
least ability, or can least afford, to find their legal liabilities. Anyone wishing to add a few
lines of text about a friend or a neighbour on a website runs the risk of suddenly being
charged with a criminal offence. This is not unusual per se since the writer has always been
34
Georgakopoulos, N. Predictability and Legal Evolution, 17 Int’l Review of Law and Economics 475-89, 1997
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responsible for the text. What is unusual and particularly harsh is that the writer in this case is
faced with a state organ with the power to instigate court proceedings without being all too
concerned about costs. The balance of rights has now been severely misbalanced.
However, with a little knowledge or planning legal liability can be avoided. The question
therefore must be asked - what is the point of free speech if it is only free for those who plan
ahead? Can the right to free speech still be called a “right” in this situation?
Rights are either natural, human or as the Americans call them, inalienable -- or not. For
corporations to be granted rights via registration may be a correct approach, but requiring
citizens to register or plan before rights are granted goes against the whole point of human
rights.
Swedish law prior to privacy legislation seemed to grant a wide area of speech rights to the
citizens. These rights were primarily the right to speak without government intervention.
Since the advent of the Internet and the privacy regulation of the 1970s and 1990s, this
freedom has been severely limited. Cases like Ramsbo are naturally to be viewed as victories
for free speech since losing a case such as this would entail an even stronger blow against the
freedom. At the same time the case itself has had a negative effect on speech since the result
is that the speech rights we thought we had are now limited.
Prior to the Ramsbro decision, each Swedish citizen was granted a right to free speech. This
freedom was naturally limited, but only in specific cases and these cases were defined by the
constitution. Post-Ramsbro, the situation has changed. Free speech is allowed but is limited
not only by the constitution. The new case dealing with the Personal Data Act limits a
citizen’s rights to: (1) discussing information in a way which is journalistic (i.e. providing a
public service) and (2) the people being discussed must be public figures. These limitations
provide for a mass of interpretive leeway. When is a citizen informing the public and when is
it simply gossip? Cannot gossip be informative? Is the tabloid press journalistic or gossipy?
The discussion of what may be relevant to a public figure is also open to endless debate. So
despite that, Ramsbro is a victory for free speech – this is only because a loss would have
been unthinkable. The result has limited the speech rights previously held by the citizen. This
is truly a sad victory.
These limitations to speech rights should not be accepted. Eventually the discussion will be
raised from the local to the national level and be discussed on a wider pan-European scale.
The effects of negative cases can eventually be reversed in the European Court but the
question is -- what limitations to free speech will a case in this court entail?
For each explanation of what is permissible in free speech, the law also defines what is not
allowed. The cases shown in this article (even the ones with positive speech outcomes) have
all limited the theoretical spectrum of speech rights. Privacy legislation has had the serious
unintended consequence of limiting speech. The ability to create free speech via false
periodicals or registration may seem like a good idea, but the real result is that they make
those who have not thought ahead seem to be more criminal in their acts than they really are.
This paper has shown that legislation brings with it serious unintended and undesirable side
effects. The courts can counteract these side effects, but this is only possible if the courts have
the ability to ignore or strike against legislation. This leads to there being an advantage in the
common law system when it comes to dealing with the unintended consequences of
legislation. However, this should not be the case. The civil law courts of Sweden must
become more vigilant when dealing with human rights and also the governmental bodies must
become less active in affecting speech rights especially since they have neither the training
nor the competence to deal with these complex issues.
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A final point is that the legislators and courts must become more wary so as not to encourage
the lack of action taken by those who host sites. Attempting to do some monitoring or
reviewing should not put the host in a worse position than the host who intentionally does
nothing at all.
© Mathias Klang 2003
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Database Right The Centre for International Law (maker)