[nc-whois] FYI - Intersting development in Sweden....

["Paul M. Kane" <Paul.Kane@reacto.com>]

                           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.

          [TALKBACK] Here you can ask questions about the law,
                     discuss it and state your own opinions.

                    This document can be found at URL:
   http://www.dsv.su.se/jpalme/society/swedish-surpreme-court-B293.htm

           More about the EU Directive and its implementation.

              The full text in Swedish of the court decision.