sou · GPB328d1 · 2002-01-01 00:00:00 — Portal is a name for a website on the Internet where a multitude of va- rious services are collected. The word portal is therefore not dealt with separately as regards the issue of the existence of constitutional protection under the TF or YGL, but instead the various services are each dealt with separately. and electronic mail that is directed at a wide circle of recipients, which is basically open to everybody, are subject to the main rule concerning radio programmes contained in Chapter 1, Article 6, YGL. The supplement rule contained in Chapter 1, Article 7, second paragraph, TF, may therefore also be applicable if it is the owner of a periodical that disseminates the whole or part of the content of the written matter unalte- red in this way. The transmission of messaging services and electronic mail is started by the . The database rule cannot therefore apply. In connection with web-based e-mail, the does not despatch the e-mail message to the recipients computer but to an e-mail server and the message is presented as web pages where the recipient can read it. This can be compared with a letter that reaches a personal post box and which is then collected there by the addressee. If the same message is sent to a wide circle of recipients, which is basically open for everybody, a web- based e-mail may fall under the main rule concerning radio programmes. The supplement rule may also be applied if it is the owner of a periodical that circulates or allows the circulation by these means of the content of the written matter without alteration. As regards meeting places and discussion fora, the Media Constitutio- nal concludes that it is the user who starts the transfer of material from the database. The main rule concerning radio programmes can therefore not be applied. If the database is arranged so that the users can introduce material so that it becomes available for other users without a preceding measure being taken on the part of the person operating the database, it falls outside the constitutional protection as the recipient can then alter the content of the database. However, if the database is arranged so that entries that the users make cannot become available for other users without a preceding measure being taken by the person operating the data- base - a so-called moderated service - the database rule applies provided it is such a mass-media enterprise as referred to in the rule that operates the activity. The supplement rule may also apply to such a database. As regards publication and information agency services together with linking, the Commission concludes that the database rule must be inter- preted so that the application of the rule is excluded not only in cases whe- re the recipient can alter the content of the database so that the alterations become available to other users without a preceding measure being taken on the part of the person operating the database but also in cases where someone else has this opportunity. This means that if the database conta- ins, for example, links to other databases or in other ways is connected with other databases and alterations of the contents in these other databa- ses may become available directly without an intermediary to the users in the mass-media enterprises database as content in that database (collecting link), the mass-media enterprises database falls outside the constitutional protection under the YGL. However, it is probably a rather theoretical case that a link is technically designed in this way. Links that involve that the user is technically transferred (transferring link) to the linked database cannot, in the opinion of the Media Constitutional , be considered to comprise any problem. The content of the linked database is then not included in the mass-media enterprises data- base but the linking is to be merely regarded as a reference. Such a linking thus does not mean that the mass-media enterprises database falls outside the database rule. As regards push-technology, the Commission concludes that this con- cept has a vague meaning. However, it must often probably mean that users subscribe to tailor-made compilations of information that are distri- buted to them without a separate request on each occasion but in accor- dance with a pre-determined plan. If it is the recipient who starts the trans- fer, the service is covered by the database rule provided it is a traditional mass-media enterprise that operates the service. If the transfers are started by the , this means that the database rule is not applicable even if the information is collected from a database. Whether the transfers in such a case are subject to the main rule concerning radio programmes depends upon whether a sufficient number of subscribers receive similarly worded messages in order for it to be able to be regarded as directed at the public, as required according to the rule. As regards web transmissions, the Commission concludes that it is the recipient who starts the transfer and that all cases of playing of a previous recording are subject to the database rule, provided it is such a mass-media enterprise as referred to in the rule that conducts the activity. Even when the issue involves the transfer of a direct broadcast, i.e. transfer basically without delay in time in relation to reality and without any real storage of data files, it is the recipient who starts the transfer, it is then a question of a direct transmission on request. As the recipient starts the transfer, the main rule concerning radio programmes, in the view of the Commission, does not apply. Direct transmission on request requires, with existing technology, data storage for some seconds and the delay in time will be even less, perhaps only some thousandths of a second. As this then involves any such data storage that was intended when the database rule was created, it is in the opinion of the Media Constitutional doubtful whether direct broadcasts on request are subject to the YGL now and even more in the future. As regards search and navigation services, the Commission considers that if the recipient uses such services, the information that is sent to him with the aid of the services may be deemed to be transferred on request. The database rule or the supplement rule can therefore also apply when such services are used, provided the pre-conditions referred to in the rules are satisfied. As regards monitoring services, the relationship may be the same. This may then also involve transfers that are started by the . The main rule concerning radio programmes may be applicable in such a case. Filtering services are used in order to eliminate certain information. The use of such services is thus not relevant for the issue of whether the transfer of information in a particular falls within the scope of the constitutional protection. A person who provides a pure access service cannot, in the opinion of the Media Constitutional , thereby be deemed to provide information. As regards print on demand, i.e. production on order of individual co- pies of written matter, images or technical recordings, the Commission concludes that such production in the normal case is not subject to the TF or YGL. Conclusions regarding the need for an amendment of the constitutional rules governing freedom of expression The Commission considers that there is a need to amend the constitutional law rules on freedom of expression so that databases with, for example, book publishers and printers, also obtain automatic constitutional protec- tion under the existing database rule. There is also a need to provide constitutional protection for certain use of push-technology, direct broad- casts on request and certain print on demand activities. There is also a need to provide an opportunity for constitutional protection for such acti- vities and for database activities according to the current database rule that are conducted by parties other than mass-media enterprises. The pre-conditions for an extended and more technology- independent constitutional protection As the starting point for the assignment is that the division into two constitutional laws should remain and that the TF should also in the future provide the protection for the printed word, it is not part of the Media Constitutional assignment to deliberate on the possi- bility of achieving a general constitutional protection for freedom of ex- pression that covers all expression irrespective of the media by which they are transferred. The to achieve a more technology-independent YGL must not, in the view of the Commission, result in a deterioration of the constitutional protection, but on the contrary the legal principles applicable to the press and freedom of expression must continue to apply in the future. It is, among other things, difficult to apply the existing sole liability system generally to publication on the Internet. If this was to be done, there would be a great risk that there would often not be anyone to be held responsible if an expression is criminal. should one generally burden everyone who publishes expressions on, for example, the Internet, with the draw- backs entailed by constitutional protection in the form of an obligation to appoint an editor, document the content, etc. A general constitutional protection for publication via the Internet or through other transfers to the public with the aid of electro-magnetic waves should therefore not be implemented. Some form of delimitation is required instead. This delimitation should be effected through an opportunity for volun- tary constitutional protection for certain communication. This voluntary protection cannot be achieved through any kind of rule prescribing that constitutional protection applies if certain information is stated. One rea- son for this is that for constitutional protection requirements in addition to the provision of certain information must be imposed; among other things, the activity must be arranged so that the person conducting it has control of the content. is information in a database permanent, but can easily be removed or altered, which can result in doubts about the existence of constitutional protection. The Commission considers that the protection ought instead to be designed so that it is made dependent upon a publish- ing licence being sought and issued (see below). Proposal for extension of constitutional protection An extended constitutional protection should be based on the current mo- del with a special, detailed constitutional protection for mass-media and not provided in the form of a more general protection, for example by the model offered by Article 10 of Convention. The Media Constitutional instead proposes the following. The data- base rule (Chapter 1, Article 9, YGL) is extended to apply also to direct transmissions on request, print on demand that involves individual copies of written matter, pictures or technical recordings being produced on order through extracts from a database, for example in a book or record store, and use of such push-technology whereby a database owner who controls the content of the database transmits messages to recipients with a content and at time intervals that they have specified in advance. Mass-media en- terprises means those actors subject to the current database rule with supplement of enterprises for professional production of printed matter or material equated therewith according to the TF. Thus, for example, book publishers and printers are also covered. When such mass-media enterpri- ses as are mentioned in the rule conduct such activities as are referred to in the rule, they obtain automatic constitutional protection for this. An op- portunity for voluntary constitutional protection is proposed for other ac- tors upon application for a publishing licence for such activities as are referred to in the rule. If a publishing licence is issued constitutional pro- tection applies for the activity. The proposal corresponds in its design to that submitted by the Media Commission concerning traditional database activities but is more extensi- ve as it also includes, besides traditional database activities, direct trans- mission on request, certain print on demand activities and certain use of push-technology. The proposal also extends the circle of mass-media en- terprises to, among others, book publishers and printers. Through the voluntary constitutional protection, it is possible for everybody who to operate such activities referred to in the databa- se rule to obtain constitutional protection for the activity if it is arranged in the stated in the database rule (it is required, for example, for di- rect transmissions on request that the recipient cannot alter the content and for traditional database activities it is required that the content can only be altered by the person who conducts the activity). The requirement for a publishing licence also means that participants can control whether such exists and if consequently there is constitutional protection and in this way obtain clarification about whether their involvement is not punishable. The YGL shall comprehensively state the preconditions for the issue and re- vocation of a publishing licence. The Commission proposes new rules in the Implementation Act on publishing licences. It is proposed that the Radio and TV Authority should issue publishing licences upon application by the person conducting the activity, provided it is technically arranged in the stated in the database rule, an editor has been appointed and certain other requirements are satisfied. It is also proposed that the Radio and TV Authority is given the task of a register of activities under the database rule. There should be an obligation to give notice of the name of the activity and, in order to avoid any risk of confusion with activities that are conducted in accordance with the current database rule, it is proposed that an obligation is introduced for persons who conduct such activities to report the name of the activity to the Radio and TV Authority. The Authority shall also, among other things, be given powers to revoke publishing licences if the pre-conditions to issue such a licence no longer exist, for example if the activity is no longer technically arranged as required according to the da- tabase rule. The Commissions proposals in this respect thus mean that even those who conduct such activities as are referred to in the database rule and wit- hin which transfers are made from abroad should have an opportunity to obtain a publishing licence in . Constitutional protection should apply fully for those activities holding a publishing licence. The proposals technology-independence, etc. The proposal means that the constitutional laws to a large extent are technology-independent and that the limitations that apply are necessary if one wishes to maintain the freedom of expression legal principles at the same time as one does not wish to burden other persons than those who wish to have constitutional protection with the obligations this entails. The Media Constitutional considers that the constitutional laws with the proposed amendments will in a sufficient satisfy the requirements for technology-independence at the same time as the consti- tutional rules are afforded an appropriate substantive content. The Commission considers that a standing committee should be estab- with the task of monitoring developments and investigating and submitting proposals for solutions to various problems in the field of free- dom of expression. The compatibility of the proposal with the Protection Directive The possibility for exceptions in the interest of freedom of expression in accordance with Article 9 of the Data Protection Directive is broader than its wording appears to permit and the extension of the scope of the YGL proposed by the Media Constitutional may be conside- red to be within this possibility for exceptions. Specially on the freedom of for wire transmissions according to the YGL contra the obligation to conduct interconnection according to the Telecommunications Act, etc. Amendments are proposed to the YGL as regards the freedom of estab- lishment (here the network owners right to decide about his network) to allow rules concerning the obligation to grant capacity in networks for the services of another, and also to clarify that it is allowed to have rules concerning the obligation for network owners to allow other pro- grammes than those that are now subject to the so-called must carry obli- gation and also rules concerning an obligation to implement measures in order to ensure the influence of the receiver collectives (e.g. in rental blocks) on the programme selection. 2 A Time limitations for press and freedom of expression offences The time limitation according to ordinary statutes for, for example, agita- tion against an ethnic group that is not a minor offence is five years. However, according to the TF and YGL, special limitation periods apply to press and freedom of expression offences. The limitation period is six months for periodicals and radio and television programmes. For other written matter and technical recordings, the period is according to the main rule one year from when the product was released for circulation. There are two exceptions to this main rule. They are referred to as the mandatory copy rule and Penal Code rule respectively. The mandato- ry copy rule applies to technical recordings with moving pictures and pro- vides that, as regards such recordings, a statute may prescribe that they should not be deemed to have been released for circulation before they have been submitted for registration with an authority; as regards videota- pes, the Implementation Act contains such a rule, which provides that a videotape that has not been submitted to sification for review in accordance with the Film and Videotape Control Act shall be deemed to have been released for circulation only when the mandatory copy under the Mandatory Copy of Documents Act has been submitted. The Penal Code rule relates to unlawful depiction of violence in technical recordings, for which the limitation period under the Penal Code applies instead of that under the YGL. The Media Constitutional assignment as regards the limitation periods for press and freedom of expression offences comp- rises two parts. The first relates to the issue of whether the special short limitation periods that, according to the TF and YGL, apply for press and freedom of expression offences should be extended, and the other con- cerns the issue of how the starting point for computation of the limitation periods for freedom of expression offences in technical recordings should be determined. As regards the issue of the length of the limitation periods, the directives state that the starting point is that the typical news media periodicals together with audio radio and television programmes should continue to have a special status. The background to the assignment is, among other things, that the JK encountered problems in connection with the application of the YGL, par- ticularly in cases concerning suspicions relating to child pornography of- fences and unlawful depiction of violence in videotapes together with agitation against an ethnic group on CD disks. The issue of how the star- ting point for the limitation period for freedom of expression offences in technical recordings should be determined has in this connection arisen as a consequence of difficulties in determining when a technical recording has been released for circulation in the frequent cases where the prescri- bed information on origin is absent or inadequate. The Commissions deliberations and proposals The Commission concludes that the problem with the period of limitation as regards technical recordings does not comprise difficulties in being able to investigate freedom of expression offences within the period but in dif- ficulties in being able to provide evidence to rebut the allegation that the limitation period has expired in the frequent cases where the prescribed information on origin is absent or inadequate. It is thus not the length of the limitation period that is the problem but difficulties in determining the starting point for the limitation period, i.e. to determine when the recor- ding was released for circulation. The Media Constitutional considers that it is important to adopt a cautious approach as regards amending the constitutional laws and only implement changes to constitu- tional laws in order to remedy problems that have arisen in practice and that have proved to be of importance or in order to rectify otherwise mani- fest inadequacies in the constitutional laws. As the main problem with the limitation periods for freedom of expression offences in technical recor- dings is that the recordings to a large extent lack information on origin, this principle of caution means that the solution to problems concerning the limitation periods for freedom of expression offences in technical recordings should cover such technical recordings that do not have the prescribed information on origin and all freedom of expression offences. The Commission has, among other things, investigated whether it is possible to introduce rules that determine the starting point for the limita- tion period for freedom of expression offences in technical recordings that do not have the prescribed information on origin in any other way than from the actual release of the recording for circulation, for example, by using the model under the mandatory copy rule or through the presump- tion rule that the JK proposed, whereby technical recordings that do not have the prescribed information on origin should be deemed to be released for circulation first when they have been discovered unless the circum- stances indicate otherwise. The Commission considers that the rules of the Penal Code on limitation periods apply as an outermost limit for the limi- tation period for freedom of expression offences and that this outermost time limit should be computed from when the recording was actually first released for circulation. This means that variants of the mandatory copy rule, such a presumption rule as mentioned immediately above or some other rule that determines the starting point for the limitation period in some other way than from when the recording was actually released for circulation can only be applied within the limitation periods prescribed by the Penal Code. They therefore do not cover cases where circulation is alleged to have occurred such a long time ago that the limitation period according to the Penal Code has expired. The fundamental problem for the JK – that he encounters false claims, which could not be rebutted, concer- ning release for circulation such a long time ago that the limitation period has expired – are thus not resolved by the rules mentioned. The Commis- sion considers that one cannot accept a rule that says that the Penal Code limitation period should not apply as an outermost limit for freedom of expression offences. The Commission proposes that the problem with the limitation period for freedom of expression offences in technical recordings is resolved by a new rule prescribing that only the Penal Codes rules on limitation periods should apply for freedom of expression offences in such technical recor- dings that do not contain all the prescribed information on origin referred to in Chapter 3, Article 13, YGL (an extended Penal Code rule). This way of attacking the problem is not directly aimed at the difficulties in deter- mining the point in time for release for circulation.