sou · GPB328d1 · 2002-01-01 00:00:00 — It ought nevertheless to some extent make it easier for the JK to provide evidence to rebut claims that the limitation period has expired because new technical recordings with different characteristics and performance become available at a rapid pace. The intention is that the JK on the basis of the characteristics and performance of the technical recording can establish when such a recor- ding has been released. The longer the limitation period is, the greater the opportunities the JK will probably have to provide rebutting evidence re- garding allegations that the limitation period has expired. However, in order not to extend unnecessarily the time that the JK has available to in- vestigate freedom of expression offences and institute criminal proce- edings, it is also proposed that prosecution may not be instituted later than two years from when the JK learnt of the recording. With this solution, the mandatory copy rule and the special rule on unlawful depiction of violen- ce lack independent importance as regards the time for the institution of public prosecution. The Commission proposes that they are repealed. For private prosecution for freedom of expression offences, only the limitation periods of the Penal Code already apply in accordance with current law. The Commissions proposals therefore do not result in any change concerning private prosecution for freedom of expression offences. Printed matter and material equated therewith according to the TF together with radio and television programmes The problems in the TF field cannot be considered to be so great that they justify a constitutional amendment. has anything arisen that suggests an extension of the limitation period of six months, which applies to peri- odicals, for which a publishing licence applies. The Commission therefore concludes that no amendment should be made to the TF as regards the limitation periods for freedom of the press offences. has anything transpired that suggests that the limitation periods for freedom of expres- sion offences in traditional audio radio and television programmes should be extended. Therefore, no such amendment is proposed. Freedom of expression offences in a database shall be regarded as a conti- nuing offence, for which reason the limitation period shall be computed from when the material was no longer made available in the database (however, this does not apply when the supplement rule contained in Chapter 1, Article 7, TF is applicable, see below). As regards freedom of expression offences in databases, it is proposed that the period of limita- tion is extended from six months to one year and that it is prescribed that the period runs from when the criminal message was no longer provided. When the supplement rule is applicable to a database, the period of limitation for freedom of the press offences in the database is six months, as that applicable for periodicals. Having regard to the purpose of the supplement rule, it is justified that the period in such a case is computed from when the availability commenced. It is proposed that an addition is introduced into the supplement rule in the TF stating that this is the star- ting point for the period of limitation. The fact that the period of limitation is computed from when the availability commenced means that when six months have duly expired after the availability commenced, the criminal material could be made available without penalty for all time. A rule is therefore proposed which empowers a court that adjudicates in a freedom of the press offence in a database that is subject to the supplement rule to order that the criminal expression should be removed from the database. Non-compliance with such an order is penalised. 2 B Certain issues concerning seizure The Commission shall review the time limit for prosecution following investigatory seizure as a result of freedom of expression offences in tech- nical recordings. The Commission shall also deliberate on whether provi- sions concerning the right for judicial consideration of confiscation and investigatory seizure need to be included in the TF and YGL, and whether the obligation under the YGL to specify what section of a recording that has motivated a seizure should be repealed as regards investigatory seizu- re. The obligation under the YGL to issue a certificate to the producer of a recording that a decision on seizure has been made should also be revi- ewed. The Commissions deliberations and proposals The Media Constitutional considers that the rules of the Code of Judicial Procedure concerning the right to judicial consideration of seizure applies both to so-called investigatory and confiscation seizure according both to the TF and YGL. The Commission proposes that an explicit rule is introduced into the TF stating the right for judicial conside- ration of seizure that is executed extra-judicially. The rule applies for both investigatory seizure and confiscation seizure. By reference in the YGL to this provision, it will also apply to investigatory and confiscation seizure under the YGL. It is indicated by the JKs presentation that it is seldom possible for the JK to implement a preliminary investigation and institute a prosecution within the stipulated period, four weeks, following for example a substan- tial seizure of videotapes that do not contain information on origin. The JK has proposed that the special period for institution of prosecution fol- lowing investigatory seizure is repealed as far as it relates to films and audio recordings. Having regard to the fact that problems do not exist in connection with all investigatory seizures under the YGL but primarily as regards substantial seizures and that there is an opportunity for extension under the YGL, and also taking into account the important interest for prompt processing of freedom of expression cases, the Media Constitutio- nal considers that there is not sufficient reason to devi- ate from the pattern of the TF as regards the period for prosecution fol- lowing investigatory seizure. The Commission has thus concluded that no amendment should be implemented as regards the period for prosecution following investigatory seizure of technical recordings. A provision in the YGL that every decision concerning seizure should specify the or those sections of the presentation that have given cause to the seizure, means that such precise information should be given simulta- neously with the making of the decision on seizure. This may, in some cases, be virtually impossible, for example in connection with substantial seizure of videotapes where every videotape has a playing time of about three hours. The JK has proposed that the obligation to specify the sec- tions should be repealed as regards investigatory seizure under the YGL. The Commission proposes that an opportunity is introduced for the JK to subsequently supplement a decision on investigatory seizure with infor- mation about what sections are claimed to be criminal. The supplement should be made as soon as the available resources allow. Subsequent supplements may only be made when it is not possible to state the section in conjunction with the decision on seizure. In the TFs and YGLs rules concerning the obligation to send a certi- ficate of seizure, a supplement is made that this should be done as soon as it is possible in order to clarify that the JK may delay the notification until it is clear who it should be sent to. 2 C Some freedom of the press legal concepts and terms, etc. In its presentation to the Government, the JK takes up problems with cer- tain concepts and terms when interpreting the constitutional laws, for ex- ample edition, and seeks clarification of the conceptual framework contai- ned in the YGL. The JK also refers to certain ambiguities and difficulties in application concerning technical recordings that are produced abroad. It is part of the assignment of the Media Constitutional to deal with the problems raised by the JK and to review the conceptual fra- mework of the YGL as sought by the JK. In the Commissions directives, the expression written matter produced using a printing press is also mentioned as one problem of delimitation. The deliberations and proposals of the Commission The expression written matter produced using a printing press contained in Chapter 1, Article 5, TF. The difficulties in determining whether written matter is produced by me- ans of a printing press in the sense referred to in the TF may arise in two respects. It may first be doubtful what is meant by the term printing press in the TF, second that it may be difficult to determine which technology has been used in connection with the production. The Media Constitutional considers that the term printing press in the TF may be deemed to relate to all methods of dupli- cating whereby colour is transferred from the print media, for example a printing plate, to the print bearer, for example paper, by direct contact and physical pressure between them. This means that many new technologies are covered by the term printing press. Written matter that is produced in another way may obtain constitutional protection in accordance with the stencil rule (Chapter 1, Article 5, first paragraph, second sentence, TF) provided it is duplicated and supplied with such information as is stated in the rule. The Commission considers that it is not possible to specify in more detail in the statutory text what is meant by printing press and that the determination of this issue should also in the future be left to the courts. The difficulties in determining what technology is used in connection with the production of written matter is an evidential problem. The Com- mission considers that the problem, in any case at present, is of limited importance but has nevertheless deliberated on whether it can and should be eliminated or reduced through some amendment to the TF. As private communication must be kept outside the scope of the application of the TF, it is not possible to have a rule that provides all written matter with automatic constitutional protection. is a requirement on a particular edition volume any solution to the problem, as this would cause great evi- dential problems. is a stencil rule that applies to all written matter possible, as this would involve weakening the constitutional protection that has applied for many years to written matter produced using a printing press and could affect a lot of written matter. The same also applies if one wishes to design a rule for all written matter on the model of a presump- tion rule contained in Chapter 1, Article 10, YGL (which relates to the provision of so-called information on origin contained in technical recor- dings). As the scope and importance of the evidential problem may be considered to be rather limited and the solutions discussed entail substan- tial amendments to the TF, the Media Constitutional considers that the constitutional protection for written matter that is pro- duced by using a printing press should not be amended. should one introduce into the TF a presumption rule resembling the model contained in Chapter 1, Article 10, YGL for written matter that is produced through stencilling, photocopying or similar technical proce- dure in order to attain greater similarity in the treatment of written matter that is produced using a printing press and other written matter. The rea- son is that a presumption rule would involve some increased difficulties, for example, for the and prosecutors to determine whether or not constitutional protection applies as even other circumstances than the pre- sence of information on origin would then have to be taken into account. The Commission does not propose any regulation of the concept of edition, but reports the following viewpoints concerning this. As regards written matter that is produced using a printing press, the TF shall be considered applicable also when only one copy has been relea- sed or is intended to be released for circulation. However, it is required that the written matter reaches or is intended to reach persons other than those who are within a small, closed circle. Such a case exists when, for example, a written placard is carried around in a procession. As regards written matter that is produced through stencilling, pho- tocopying or similar technical procedure, it is necessary for the TF to apply that the written matter really is or is intended to be duplicated. How many copies are required must be assessed set against the background of the fact that it should be possible for the written matter to be circulated to persons other than those within a small, closed circle. The same applies for technical recordings as for written matter that is produced by means of stencilling, photocopying or similar technical pro- cedure when circulation is intended to take place through the issue of co- pies and not through, for example, public showing of a videotape. Different content results in different editions, and different production times also results in different editions. The moment of publication according to the TF and YGL The moment of publication, i.e. the point in time when intervention against the expression may occur at the earliest, for technical recordings according to the YGL is reached, as well as for written matter according to the TF, only when at least one copy of the technical recording is produced and released for circulation to persons other than those within a small, closed circle. The moment of publication is thus not already achieved when only a preparedness, upon order, to produce and disseminate recor- dings exists, as such an interpretation would contravene, among other things, the prohibition against censorship, whereby the production and circulation of written matter and technical recordings may not be made subject to conditions regarding preliminary review by the State and that intervention against violations of what is allowed to be expressed may only take place subsequent to the release for circulation. In order to clarify that the publication time is first reached when at least one copy of the technical recording has been produced and released for circulation to per- sons other than those who are part of a small, closed circle, a rule will be introduced into the YGL that states that a technical recording is published when it is released for circulation to the public. As a consequence of this amendment, the wording of the YGLs rule on limitation periods is alte- red. Further concepts and terms The Commission here has the following opinion. Technical recording shall mean an edition of a technical recording and every new edition is deemed to comprise a new technical recording. Copies and duplicating have the same meaning as in normal usage. The person who caused the recording to be made may be deemed to refer to the person who plans, organises and implements the production of the copies intended for circu- lation. production, for example through copying, of a new edition is a new production. No proposals are presented in this connection. Technical recordings that are produced abroad The provisions contained in the YGL that information on origin should be displayed shall not apply to technical recordings that are produced abroad and released for circulation in , as the obligation to display infor- mation under this provision is imposed on the person who produces the recording and that person is not accessible as he is located abroad. Instead, a special rule on information on origin will be introduced into the YGL concerning such foreign recordings. According to the rule, recordings shall be supplied with information about who here in has released it for circulation and when the copies were brought into the country. This obligation rests with the importer. A special rule is introduced in the Imp- lementation Act concerning the obligation to display information on im- ported recordings having to be satisfied in the same as in the case of recordings produced in , provided this is practicable. If it is not possible, the obligation may be satisfied by the information being affixed to a cover, sleeve or similar object. If the original of a technical recording is manufactured in and the copies intended for circulation are manufactured abroad and imported to , the recording may, in the opinion of the Commission, be dee- med to be produced abroad. Prompt processing of press and freedom of expression cases The Media Constitutional emphasises that it is impor- tant that the provisions contained in the TF and YGL concerning prompt processing of cases under the constitutional laws are complied with. The provision concerning prompt processing contained in the TF expli- citly applies to freedom of the press cases and other cases concerning offences against the provisions of this Act. However, according to the reference contained in the YGL to this provision, that stated there shall apply to matters concerning freedom of expression cases. The wording of the reference thus means that the rule concerning prompt processing only applies to freedom of expression cases and not for other cases under the YGL. In the opinion of the Media Constitutional , there is no reason for such a differentiation between the TF and YGL. The Commission therefore proposes a reformulation of the YGL so that the rule concerning expeditious treatment applies to the same kinds of cases according to the YGL as under the TF. 3 The list of offences in the TF The Commission shall decide on whether the offence unlawful threat and other criminalised expressions where unlawful threats are an element, should be included in the list of offences contained in the TF so that such expressions become punishable as press and freedom of expression offen- ces if they are committed in media that are subject to the TF or YGL. The background to the assignment is the so-called case that related to the publication of pictures containing threats. The deliberations of the Commission The question that shall be answered is whether further offences should be introduced into the schedule of offences contained in the TF (as also applies according to the YGL) and in that case what offences. The issue primarily applies to offences where threats comprise an element. The Commission has considered it natural to allow the analysis cover all of- fences under the Penal Code. There may be provisions on offences resem- bling the threat offences and which give cause for similar treatment in connection with deliberations concerning the catalogue of offences. When assessing the issue of the extension, one must proceed on the substantive scope of application of the TF being considered, according to the travaux préparatoires, the writings of learned scholars and judicial precedent. However, the limit for the scope of application cannot be considered clear. The Media Constitutional considers that the fol- lowing principles should apply in connection with the deliberations on whether a particular offence is of a nature that it could be introduced into the catalogue of offences contained in the TF. It must be possible to com- mit the offence through an expression in a medium protected by constitu- tional law. The expression should be punishable as such, which means that the offence in principle may not contain any element that stands outside the control of the person solely responsible, i.e. one should in principle from the expression itself alone be able to assess whether it is punishable or not. The content of the expression should also be deemed to fall within the area that can be delimited on the basis of the purpose and meaning of the freedom of the press, which in that connection should be interpreted widely. This means that one proceeds on the basis of the use of media protected by constitutional law as a mean in the service of the private bu- siness operation does not require constitutional protection, for which rea- son, for example, fraud, dishonest behaviour, swindling and forgery shall not be included as freedom of the press offences. One must also consider whether it can be deemed likely that the offence will be committed in a medium protected by constitutional law, whether the penal provision in question is such that it may be abused with the purpose of severely re- stricting freedom of expression and whether the offence in question can be dealt with in accordance with the freedom of the press law procedural and liability rules. When applying these principles to the penal provisions in the Penal Code, the Commission has concluded that unlawful threat, threat to public official (including threat to security guards, etc. according to Chapter 17, Section 5 of the Penal Code), interfering in a judicial matter and offences against civil rights are offences of such a nature that they could be inclu- ded in the catalogue of offences. However, whether this should be done requires further deliberations. The Commission has considered that it can- not with any great degree of certainty be said how the introduction in the catalogue of offences of these offences would influence the opportunities of the mass media to report on such offences but that it cannot be excluded that this would involve some impediment to the reporting of news. Accor- ding to what the Commission has been able to establish, there is not a suf- ficient clear view on how commonly the offences in question occur on the Internet. The Commission has drawn the conclusion that there is insufficient reason, in any event at present, to propose any extension of the catalogue of offences. Thus the Commission does not propose that any further offences should be included in the catalogue of offences at present. The Commission has also deliberated on the issue of attempt, prepara- tion and conspiracy should be included in the catalogue of offences - in the event that the above-mentioned offences were to be included - and the question of whether the offences should give cause to exceptions from the principle of sole liability and the principle of of communicators, if they were to be included in the catalogue of offences. Lag om ändring i yttrandefrihets- grundlagen Härigenom föreskrivs i fråga om yttrandefrihetsgrundlagen1 dels att 1 kap. 1, 7, 9 och 10 §§, 3 kap.1 och 6 §§, 4 kap. 1 och 6 §§, 7 kap. 1 och 3 §§, 10 kap. 1 § samt 11 kap. 1 § skall ha följande lydel- se, dels att det i lagen skall införas tre nya paragrafer, 3 kap. 15 § och 10 kap. 3 och 4 §§, samt närmast före 3 kap. 15 § en ny rubrik av föl- jande lydelse. Varje svensk medborgare är gentemot det allmänna tillförsäkrad rätt enligt denna grundlag att i ljudradio, television och vissa liknande överföringar samt filmer, videogram, ljudupptagningar och andra tekniska upptagningar offentligen uttrycka tankar, åsikter och känslor och i övrigt lämna uppgif- ter i vilket ämne som helst. Yttrandefriheten enligt denna grundlag har till ändamål att säkra ett fritt meningsutbyte, en fri och allsidig upplysning och ett fritt konstnärligt skapande. I den får inga andra begränsningar göras än de som följer av denna grundlag. Vad som sägs i grundlagen om Vad som sägs i grundlagen om radioprogram gäller förutom pro- radioprogram gäller förutom pro- 1 Yttrandefrihetsgrundlagen omtryckt 1998:1439 gram i ljudradio också program i gram i ljudradio också program i television och innehållet i vissa television och innehållet i vissa andra sändningar av ljud, bild eller andra överföringar av ljud, bild text som sker med hjälp av elektro- eller text som sker med hjälp av Med tekniska upptagningar avses i denna grundlag upptagningar som innehåller text, bild eller ljud och som kan läsas, avlyssnas eller på annat sätt uppfattas endast med tekniskt hjälpmedel. I fråga om samtidig och oförändrad I fråga om samtidig och oförändrad