FC: Swedish Supreme Court overturns the European Data Directive

[Declan McCullagh <declan () well com>]

Jacob is a professor of computer science at Stockholm University and a 
faithful chronicler of the free speech problems with the European Data 
Directive:
  http://www.politechbot.com/cgi-bin/politech.cgi?name=palme

-Declan

**********

Date: Tue, 17 Jul 2001 12:16:27 +0200
From: Jacob Palme <jpalme () dsv su se>
Organization: DSV
Subject: Swedish Supreme Court overturns the EU Data Directive
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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
          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.





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