FC: Swedish Supreme Court overturns the European Data Directive

From: Declan McCullagh (declanat_private)
Date: Tue Jul 17 2001 - 08:48:35 PDT

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    Jacob is a professor of computer science at Stockholm University and a 
    faithful chronicler of the free speech problems with the European Data 
    Date: Tue, 17 Jul 2001 12:16:27 +0200
    From: Jacob Palme <jpalmeat_private>
    Organization: DSV
    Subject: Swedish Supreme Court overturns the EU Data Directive
    Content-Type: multipart/alternative;
    X-UIDL: aad075102a2364617420f500f192d038
                               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
          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.
              [TALKBACK] Here you can ask questions about the law,
                         discuss it and state your own opinions.
                        This document can be found at URL:
               More about the EU Directive and its implementation.
                  The full text in Swedish of the court decision.
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