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[FYI] (Fwd) FC: Swedish Supreme Court overturns the European Data Directive
- To: debate@lists.fitug.de
- Subject: [FYI] (Fwd) FC: Swedish Supreme Court overturns the European Data Directive
- From: "Axel H Horns" <horns@ipjur.com>
- Date: Tue, 17 Jul 2001 22:09:23 +0200
------- 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
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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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