Swedish Supreme Court
on the EU Data Directive

The Swedish Supreme Court has made an important decision regarding the EU 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 for.

The main reasons given by the Swedish Supreme Court for this decision is that:

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 laws.

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.