A recent Swedish legislatory proposal may extend the application of the Fundamental Freedom of Expression Act (FFEA) to online and other public databases (for more information please see "Freedom of Expression is Technology-Neutral"). The relationship between internet publishing and freedom of expression has been the subject of several high-profile court cases over the last few years.
In one of the first cases under the EU Data Protection Directive (NJA 2001, p 409) the Swedish Supreme Court looked at the interplay between data protection principles and the right to freedom of expression contained in the European Convention on Human Rights and in the Swedish Constitution. The Supreme Court concluded that where a website aims to inform public opinion and is not private in nature, the protection of privacy must give way to freedom of expression. The European Court of Justice will also try a case (C-101/01) next year, referred to it by a Swedish appellate court, concerning statements on a website which allegedly infringed the subject's privacy.
The Supreme Administrative Court is also due to try a case (7014-2001) in which the proprietor of a website has claimed that the site is protected under the FFEA and is therefore exempt from the application of privacy legislation. The main issue in the case is whether a company which is not a traditional media company may enjoy the same protection as newspapers and broadcasting companies.
Similarly, the defendant in an ongoing libel case has claimed to be protected by the Freedom of Press Act, which in certain cases applies to databases provided by newspapers. The case, which comes before the Supreme Court this autumn (Ö 1497-02), involves newspaper articles which the defendant published in a searchable database. The main issue is whether protection under the Freedom of Press Act extends to companies that digitally store information which was originally published in paper form.
Finally, in a criminal libel case (B-7655/00) the chief editor of a major tabloid has been found guilty by the Stockholm District Court. The tabloid hosted a chatroom where slanderous messages were published, and was itself protected under the FFEA. However, because the editor exercised editorial control over the chatroom he was held strictly liable for libellous content.
These cases are a natural consequence of the IT revolution and the increasing importance of the Internet as a publishing medium. They also highlight the interplay between internet publishing and the principles of freedom of expression. Although there is no doubt that traditional publishers should be afforded constitutional protection, the position is not so clear for private individuals, who now have the technical means to publish their views in a public forum. This would not have been possible without the Internet, because traditional media companies apply an element of editorial control. The cases are likely to be followed by others.
For further information on this topic please contact Agne Lindberg at Advokatfirman Delphi & Co by telephone (+46 8 677 54 00) or by fax (+46 8 20 18 84) or by email ([email protected]).