[FYI] (Fwd) FC: Swedish Supreme Court overturns the European Data Directive

["Axel H Horns" <horns@ipjur.com>]

------- Forwarded message follows -------
Date sent:      	Tue, 17 Jul 2001 08:48:35 -0700
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: Swedish Supreme Court overturns the European Data Directive
Send reply to:  	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
Content-Type: multipart/alternative;
  boundary="------------8FEA34926A5DA987674470F0"
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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