Act regulating Internet Service Providers

The Swedish parliament has in May 1998 passed a new act to regulate what in this act is designated as "Electronic Bulletin Boards". The act does, in reality, not only apply to BBSes, but also to most services providing information on the Internet, such as WWW services, Usenet News servers, etc. It can be seen as a Swedish attempt to handle the same problem which caused the infamous Communications Decency Act

in the U.S.

A short summary of the law: A supplier of Internet-based information services is to some extent responsible for illegal content in these services, even if these illegal contents have been submitted by users of the service. This responsibility is limited to what is obviously illegal according to certain other acts, for example racial agitation, child pornography or copyright infringement. To fulfill the requirements of the law, the supplier must supervise the contents of the service. If, however, checking every single message is too cumbersome, the provider can handle the supervision through an abuse board, to which users can complain about illegal messages. For areas where illegal contributions are common, the provider of the area, however, must check regularly and remove illegal content. Thus, it is enough to react to complaints in areas where illegal contributions are rare, but this is not enough for areas where illegal contributions are common.

Below is the full text of the act, translated to English, and some comments on it and explanations. The government committee proposal, on which the act is based, is also available

, as well as the original Swedish text of the act

Act (1998:112) on Responsibility for Electronic Bulletin Boards

Areas of application

Article 1 This act applies to electronic bulletin boards. By an electronic bulletin board is in this act meant a service for conveyance of electronic messages.

The law covers such messages in text, picture, sound or other information formats.

Article 2 The law does not apply to:

1. the provision of only a network or other connections for the transmission of messages or other services necessary to use a network or other transmission channel,

2. mediation of messages within a government agency or between government agencies or within an company or a legal group of companies,

3. services which are covered by the regulations in the Freedom of the Press Act or the Fundamental Law on Freedom of Expression.

Comment: The Freedom of the Press Act and the Fundamental Law on Freedom of Expression is part of the Swedish constitution. They regulate communication through printed media, film, radio, television and sound recordings. They are not, despite their name, a law which protects freedom of speech except within these particular media. However, if a newspaper publishes its text both in a printed version and on the Internet, then this text might be protected by the Freedom of the Press Act, also in its Internet version, and thus not controlled by the BBS act. Similarly for radio, television and sound recordings which are distributed or sold both through the Internet and through regular channels.

4. messages which are only intended for one particular recipient or a designated set of recipients (electronic mail).

Comment: This is very confusing. The lawmakers are probably not aware that "electronic mail" and "messages which are only intended for one particular recipient or a designated set of recipients" are not two words for the same thing. Probably, the lawmakers mean with this clause that the law is not intended for electronic mail unless it is stored in archives available to several people. The lawmakers probably do not mean to exempt all messages which are only available to a closed group of people, because in the end of article 5 below, the act states that an administrator of a bulletin board must be allowed to inspect what is written within closed groups.

Information to users

Article 3 The supplier of electronic bulletin boards shall inform each person who wishes to use the service about his identity and to what extent their messages will be available to other users.

Supervision of the service

Article 4: The supplier of electronic bulletin board shall, in order to be able to fulfill the obligations according to article 5, supervise the service to an extent which is reasonable considering the extent and objective of the service.

Comment: In the proposal to the parliament, the government makes some important explanations on the extent of the required supervision. The government writes in the proposal:

The practical method of supervision will depend on the particular circumstances. It is, for example, not required that the supplier continuously checks every single message transmitted by the service. Some kind of supervision is however needed. It is not acceptable to not supervise the service at all for a longer time. The provider must regularly go through the content of the electronic bulletin board. How often this is done varies from case to case depending on the content of the service. Commercial services must check more regularly than private services. It is not intended that the activity of the supplier should be seriously hampered by the act. If the number of messages is so large, that it is too cumbersome to check them all, it can be acceptable to provide an abuse board, to which users can complain of the existence of illegal messages.

Obligation to remove certain messages

Article 5: If a user submits a message to an electronic bulletin board, the supplier must remove the message, or in other ways make it inaccessible, if

1. the message content is obviously such as is referred to in the penal code, section 16, article 5, about instigation of rebellion, section 16 article 8 about racial agitation, section 16 article 10 about child pornography, section 16 article 10 about illegal description of violence, or

Comment: Note that many illegal messages are thus not covered by the act, for example libel or fraud are not covered.

2. it is obvious that the user has, by submitting the message, infringed on the copyright or other right protected by section 5 in the law about copyright to literary and artistic work.

In order to be able to fulfill the obligation according to the first and second clause above, the supplier is allowed to check the content of message in the service

Comment: This probably is meant to say that if a service provider has customers, who use closed groups to exchange information, then the service provider is allowed to check what they say in these closed groups. This is, of course, very controversial, and I wonder if the lawmakers have really considered the effects of this clause.

These obligations and rights also apply to those who have been given the task, by the supplier, to supervise the service.

Penalties

Article 6: A person who intentionally or through negligence violates article 3 shall be sentenced to pay a fine.

Article 7: A person who intentionally or through gross negligence violates article 5, first clause, is sentenced to a fine or a prison sentence of not more than six month, or, if the crime is severe, to prison in not more than two years. Slight infringement should not be punished.

The first paragraph should not be applied if the offense is punishable under the Penal Code or the act about copyright to literary or artistic works.

Forfeiture

Article 8: Computers and other equipment that have been used in a crime according to article 7 of this act may be declared forfeited, if this is called for in order to prevent further crime or for other special reasons. Forfeiture need not be undertaken wholly or partly if the forfeiture is unreasonable.

Last update: 3 June 1998 by Jacob Palme E-mail: jpalme@dsv.su.se. at
the Department of Computer and Systems Sciences, Stockholm
University/KTH