Swedish Supreme Court
on the EU Data Directive
The Swedish Supreme Court has made an important decision regarding
data directive. This directive has been interpreted by many people
as a serious infringement in the freedom of speech, since it requires
permission from the person you write about before you publish any information
about a person on the Internet.
The case was a person, who had published a web site, in which he seriously
criticized several Swedish banks and named individuals working at these
banks, which he regarded as having improperly cheated the customers
of the bank from their money.
The Swedish Supreme Court rejects the convictions in the lower court
and the appeal court, and frees the person from all he was prosecuted
The main reasons given by the Swedish Supreme Court for this decision
The EU Data Directive is based on the European
Convention for protection of human rights. This convention has two
possibly contradictory requirements: Protection of Privacy and Freedom
of Speech. However, Protection of Privacy is specified in this convention
as including private and family life, home and personal correspondence.
Acts taken by bank directors in their work do not belong to this area.
The EU Data Directive says:
Whereas the processing of personal data for purposes of journalism
or for purposes of literary of artistic expression, in particular
in the audiovisual field, should qualify for exemption from the requirements
of certain provisions of this Directive in so far as this is necessary
to reconcile the fundamental rights of individuals with freedom of
information and notably the right to receive and impart information,
as guaranteed in particular in Article 10 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms.
The Directive further says:
Article 9 Processing of personal data and freedom of expression
Member States shall provide for exemptions or derogations from the
provisions of this Chapter, Chapter IV and Chapter VI for the processing
of personal data carried out solely for journalistic purposes or the
purpose of artistic or literary expression only if they are necessary
to reconcile the right to privacy with the
rules governing freedom of expression.
The Supreme Court says that "solely for journalistic purposes
or the purpose of artistic or literary expression" does not mean
that only special professionals like journalists have this freedom of
speech. Freedom of speech, says the court, is for everyone, not only
for certain professionals. The word "solely" in the directive
should not be interpreted to mean that these rights are only available
for certain professionals, but rather means that for example marketing
data bases belonging to newspapers are not exempt from the privacy protection
The Supreme Court finally notes that its new interpretation of the
EU data directive and the Swedish law based on it will not, of course,
exempt people from prosecution for slander, but the defendant in this
case was not prosecuted for slander, so the court has not considered
whether his web page could be regarded as slander.
One should note that this decision of the
Swedish Supreme Court shows a tendency to Americanization of Swedish
law. Traditionally, the Swedish Supreme Court has not, like its American
counterpart, evaluated laws against constitution, and invalidating unconstitutional
law. In this case, however, the Swedish Supreme Court has used the European
Convention of Human Rights as a basis for its decision. The Swedish
Supreme Court tries to say that this is what the Data directive really
means. However, it is obvious that at least the Swedish politicians
who made the law did not interpret the directive in this way, since
the Swedish politicians changed the law a year after its inception,
because of the criticism of the law. And they did not, then, change
the law in the way the Supreme Court now interprets the data directive.
This is one of several cases where American
legal customs are influencing law interpretation in Europe. One can
compare this decision to decisions of the U.S. Supreme Court to reject
laws by which politicians in the U.S. have tried to restrict the freedom
of speech on the Internet.