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