sou · GSB3114 · 2005-01-01 00:00:00 — The assistance can then be provided regarding an act that constitutes an offence against foreign law if a corre- sponding act is liable as a freedom of the press or freedom of ex- pression offence or a communication or procurement offence. The assistance can be provided although the procedural rules for the trial in the applicant country will not correspond to the special Swedish procedural rules according to TF or YGL, with JK and jury. Assistance can also be provided on matters concerning an act that constitutes an offence against a foreign law corresponding to an act constituting an offence against one of the provisions referred to in Chapter 1, Sections 8 and 9 TF concerning inter alia copy- right. JK should always make a statement of views before assistance may be provided, and in matters of political offences the assistance may only be provided with the consent of the Government. A re- view must always be conducted of whether the procedural rules applied are acceptable. The procedural rules must, in any event, satisfy the requirements of Convention for it to be possible to provide legal assistance. A supplement should be made to Chapter 13, Section 6, second paragraph TF and Chapter 10, Section 2 YGL in order to make it clear that a precondition for the protection for communication and procurement of media that is not released in to apply according to these statutory provisions is that the communication or procurement took place in . Through such a supplement, it will be made clear that international legal assistance can be provided in relation to a matter involving the communication or procurement for media that is not released in , provided the communication or procurement took place abroad. 2 Review of list of offences On 1 January 2003, the list of the freedom of the press offences contained in TF was extended – with an impact also on YGL – for four new offences; unlawful threat, threat to public servant, inter- in a judicial matter and civil liberties offences. The list of offences contained in TF includes 18 offences after this extension. The terms of reference of the Freedom of the Press and Freedom of Expression Committee include conducting a review of the list of offences. interprets its terms of reference in this respect to mean that it should deliberate on whether some of the offences included in the list of offences prior to the extension in 2003 should be deleted. proceed on the basis that it is not intended that any offence should be dealt with in the way that the child pornography offence was dealt with, i.e. be excluded from the scope of the application of the constitutional laws by re- definition so that the offence would fall under the provisions of an ordinary law statute when it is committed within media protected by the constitution. Consequently, the Committee proceeds on the basis that if any offence is to be deleted from the list of offences, it should thereafter be excluded from liability if it is committed with- in a constitutionally protected media. It is not a purpose in itself that the list of offences should be short. The aim must be that it should include those acts that there is reason to penalise as freedom of the press and freedom of ex- pression offences. The Committee considers that no offence should now be deleted from the list of offences. The reasons for this are the following. 1) Freedom of the press offences in the nature of wartime offences and the like (high treason, instigating war, sedition, treason, treachery, negligence harmful to the country and spreading rumours endangering the security of the Realm) These offences may indeed appear to be irrelevant under peaceful conditions, but may be of importance in adverse times. They constitute a legislation passed in view of wartime conditions and the like intended to have effect in adverse times when it is quite conceivable that perpetrators would use media protected by consti- tutional law to achieve their aims. The fact that several offences have been included in the excepted cases, when, besides the individual person responsible, the communicator may also be punished, indicate that the legislator to date has viewed these offences very seriously. If the offences are deleted, they will be excluded from liability if they are committed within media pro- tected by constitutional law. What should be deliberated upon is whether these offences can be more clearly defined in the Penal Code. 2) Freedom of the press offences regarding secret information (espionage, unauthorised dealing with secret information and negli- gence with secret information) The criminalisation of these acts is important for the protection of national security. The fact that two offences have been included in the cases exempted when, besides the individual responsible, the communicator may also be punished, indicates that the legislator to date has viewed these offences very seriously. If the offences are deleted, the disclosure of secret information of importance to national security would be excluded from liability if it occurs with- in media protected by constitutional laws. 3) Freedom of the press offences towards other public interests (inciting unlawful behaviour, agitation against a national or ethnic group and unlawful depiction of violence) It should also be possible in the future to punish those who within media protected by constitutional law incite or try to deceive the public into committing offences, neglect their civic duties or disrespect public authority, i.e. commit incitement of unlawful behaviour. The rules for the processing of freedom of the press and freedom of information cases with the JK, jury and the instruction to rather acquit than convict ensure that the incitement of unlawful behaviour provision is applied without threatening the freedom of expression. It should be considered whether this offence can be more clearly defined in the Penal Code. It should also be possible in the future to punish agitation against for example a national or ethnic group and unlawful depiction of violence that is committed within media protected by constitutional law. 4) Freedom of the press offences against individuals (defamation and insulting behaviour) Defamation is the most common freedom of the press and freedom of expression offence. Convention requires that legal protection is provided against violation of an individuals private and family life. It should also be possible in the future to punish defama- tion committed within media protected by constitutional law. It is actually difficult to contemplate cases where a state- ment/utterance within media protected by constitutional law is directed to the party affected in the required for insulting behaviour to exist. However, set against the background of the requirements of Convention for protection of an individuals private and family life and the extension of the consti- tutional law protection to cover new forms of computer communi- cation, there may be a need to be able to refer violations of integrity that do not constitute defamation under the insulting behaviour provision. 3Information about origin for technical recordings produced abroad According to YGL, technical recordings shall be furnished with details of who has commissioned the production of the recording and also regarding when, where and by whom the recording is produced. This obligation, which among other things is important for the opportunity to trace someone who can be held responsible for a freedom of expression offence in the recordings, rests with the party who produced the copies. A corresponding obligation also applies to recordings that are produced abroad. For such recordings, the provisions applicable to the person who commissions the production of the recording (the producer) apply to the importer. Such recordings shall thus be fur- nished with inter alia details of who the importer is. However, the obligation to furnish the recordings with this information does not rest with the importer but the person who produces the copies. However, as regards imported recordings, the person who produces the copies is located abroad and is thus accessible to the Swedish authorities. MGU (Freedom of Expression – Mediegrund- lagsutredningen 2002:28) proposed that the regulation of details of origin for technical recordings that are produced abroad should be replaced by a new provision, which require the importer to furnish the recordings with details of who has released them for dissemination and when they were brought into the county. How- ever, the Government considered that it was unclear how the pro- posal related to the prohibition contained in the against quantitative import restrictions and measures having corresponding effect. The Freedom of the Press and Freedom of shall, set against the background of that stated above, propose an appropriate solution to the problem with details of origin for technical recordings produced abroad. The Committee considers that it is possible that Court of (ECJ) should assess MGUs proposal for regula- tion as a measure with corresponding effect but that in this case it must be deemed to be a permitted exceptional case as the purpose with the regulation is that we should be able to maintain our pro- tection of freedom of expression laid down in constitutional law and be able to prosecute freedom of expression offences. These reasons must be deemed to be at least equally compelling as those reasons that the ECJ has accepted in other contexts. does the exemption go further than necessary. thus considers that the solution proposed by MGU does not violate the EC law prohibition on quantitative import restrictions and measures having corresponding effect. has not been able to find any other solution to the problem with details of origin for technical recordings produced Consequently, the solution proposed by MGU should be implemented. This solution entails the following. The provisions contained in Chapter 3, Section 13 YGL on details of origin shall not apply to technical recordings that are produced abroad and released for dis- semination in . Instead, a special rule on details of origin for such recordings shall be introduced in Chapter 10, Section 3 YGL. According to the new rule, the recording should be furnished with details of who, here in , has released them for dissemination and when the copy was brought into . This obligation is imposed on the importer. A special rule shall be introduced in Chapter 4, Section 2 of the Implementation Act whereby the obliga- tion to show details on imported recordings shall, whenever possible, be conducted in the same way as in relation to recordings produced in . Otherwise the obligation shall be satisfied by the details being affixed to a cover, sleeve or similar object. 4Joint processing of freedom of the press and freedom of expression cases Since 1 January 2003, cases concerning freedom of the press and freedom of expression offences that are related with each other can be entertained by any of the district courts that is a competent court. The same also applies for freedom of the press or freedom of ex- pression cases relating to private claims owing to such offences and also for cases where the action is brought exclusively for the con- fiscation of printed material or technical recordings. The cases shall be processed as one action unless there are extraordinary reasons for not doing so. The terms of reference of the Freedom of the Press and Freedom of Expression Committee include deliberating on whether powers should be introduced for the Supreme Court, upon the request of a party or a court, to decide to consolidate for joint processing at one court such cases as are pending at different courts. The Committee considers that there is value in having a local assessment of freedom of the press and freedom of expression cases. A questionnaire has also shown that there have only been a few cases where the application of a rule of the kind now in question could apply. The procedural economic gains that may be made are Having regard to this, the Committee has accepted that such a rule should not be introduced. The Committee considers that the merger of counties gives cause to review the Ordinance on the competence of certain district courts to entertain freedom of the press and freedom of expression cases. also points out that the ongoing work with altering the district court structure in the County of may not be allowed to entail it becoming unclear which court in the future will be the freedom of the press and freedom of expression court. 5 Certain problems in application Print-on-demand production of technical recordings without details of origin It is often difficult to determine whether YGL applies to technical recordings that are produced by print-on-demand (production of individual copies on order), as these recordings usually do not have the prescribed details of origin and nor is it indicated by a copy found whether it is part of an edition or not. A possible amendment of the fundamental preconditions for the application of YGL to technical recordings is far too great an issue to be deliberated on now as a possible solution to these problems. The issue will be dealt with in the future work in conjunction with the question of ensuring a more technology independent constitu- tional law protection for freedom of expression. limits itself to reporting its view on what, according to the current legislation and practice, applies regarding the preconditions for YGL to become applicable to technical recordings without details of origin. It follows from the prohibition against censorship that the constitutional law protection applies already during the production process. Consequently, it is not only the verified dissemination that determines the issue of the existence of constitutional law protection. YGL applies to technical recordings without details of origin that are produced by print-on-demand operations, subject only to the precondition that the orders are received or can be expected to be received to such an extent that an edition comprising at least some ten identical copies are produced or are intended to be produced during a period of about one month at the most. number of recordings have not yet been ordered or produced when the issue of constitutional law protection arises, the starting point should be that the recordings do not fall within the ambit of the constitutional law protection as print-on-demand operations only involve recordings being produced on order. For constitutional law protection to then apply, it should be indicated that the circum- stances are such that it can be expected that at least some ten orders will be received within a period of one month at the most. A producer who wishes to be sure of constitutional law protection should produce a sufficient edition when orders start to be received. The mere fact that a technical recording has been advertised for sale does not mean that it falls within the ambit of YGL. One consequence of the issue of the scope of YGL being difficult to determine and may require extensive evidence is that actions in freedom of the press and freedom of expression cases may be dismissed following several years of proceedings and that in some cases it may be unclear for a considerable time whether JK or a public prosecutor is competent. The Committee considers that these problems cannot be resolved either by a rule providing that the accused shall be compelled to no later than during the preparatory stage of the proceedings challenge the application of YGL in order to have that issue considered or by a rule providing that, for example, the Supreme Court should be able to make a binding decision on the matter. One practical implica- tion of such solutions would be that if it only became clear to the court that YGL was not applicable following the preparatory stage of the proceedings in the case or the binding decision, the court would nevertheless be compelled to erroneously entertain the case as a freedom of expression case with among other things a jury and perhaps also at the wrong forum. This could possibly be to the disadvantage of the accused as special rules of responsibility without requirements for ordinary intent apply in freedom of ex- pression cases. An obligation for the accused to present a challenge would also mean that the issue of constitutional protection could be answered in different ways in separate cases regarding one and the same medium owing to the accused persons acting differently. Rules on a parallel competence for JK to investigate and bring an action at the same time against the same person for both a freedom of the press or freedom of expression offence and corresponding Penal Code offence would mean that the issue of liability could possibly be determined more rapidly than today. However, in the opinion of the Committee, it is not clear that the problem is so great that there is reason to make an already complicated field of law even more complicated by introducing rules on parallel com- petence. therefore refrains from presenting any proposal regarding this. In order to ameliorate the effects of the difficulties that exist, one might possibly deliberate upon the introduction of a time limitation rule whereby the service of prosecution papers for free- dom of the press and freedom of expression cases would constitute in relation to the accused a suspension of the limitation period re- striction as regards a corresponding Penal Code offence. This rule could possibly be formulated so that it also covers the reverse situation, i.e. that the service of prosecution for a Penal Code offence would also in relation to the accused suspend the limitation period regarding the corresponding freedom of the press and freedom of expression offence. However, it must be noted that a manifest disadvantage with such a rule is that it would entail the issue of liability remaining undetermined for an indefinite period. The Committee considers that there is not sufficient justification to introduce such a rule on time limitations. A public prosecutor is entitled to implement those measures required to enable him to assess whether there is reason to assume that constitutional law protection exists. As soon as he concludes that there are such reasons, he should hand the matter over to JK for consideration. This does not need to be laid down in a special rule. New dissemination of a technical recording by public playing /showing It is only public playing/showing of technical recordings for which the time limit of freedom of expression offences have already occurred according to YGL that are dealt with. The Committee considers that it is clear that the dissemination by public playing or showing of a technical recording for which the time limit for a freedom of expression offence has already elapsed shall be regarded in the same way as dissemination by the release of copies of such a time-barred recording, i.e. the dissemination shall not be deemed to be a new freedom of expression offence but shall be excluded from liability. The reason for this is that the protection according to YGL is linked to certain media – radio and television broadcasts, databases and technical recordings – and that public playing or showing of a technical recording is not a medium but a means of dissemination. New dissemination of a time-barred recording is excluded from liability. The prohibition of refusal to forward written material and technical recordings contained in Chapter 6, Section 4 TF and Chapter 3, Section 10 YGL This became a pertinent issue in conjunction with the 2002 election, when did not distribute certain election material to households. The constitutional law rule prohibiting refusal to forward only applies to the extent that there is a public law obliga- tion to convey written material or technical recordings according to provisions outside the constitutional laws. Posten ABs obligation today to ensure that everyone in can have addressed dis- patches conveyed is more extensive than the obligation which the had at the time of TFs entry into force (1950). The overall opportunities to reach a large group of recipients with the same communication is also significantly greater now than around 1947 to 1949. These changed circumstances mean that a refusal to forward today would not have such extensive effects as at the time TF was passed. The conclusion of the Committee is that there is no cause now to propose any amendment of the constitu- tional law provisions concerning prohibition of refusal to forward. There are reasons in another context to deliberate upon a special regulation of the obligation to convey unaddressed election material and the like. The rule on web transmissions contained in Chapter 1, Section 6 YGL proposes that the wording of YGLs rule on web transmissions contained in Chapter 1, Section 6, first paragraph, second sentence should be adjusted so that it is clarified first that what is encompassed by the rule – and what was thus intended – is the provision to the public on special request of web transmissions that comprise direct broadcast or playing of previous recordings that start at times that the decides, second that among other things unmoderated chatrooms fall outside the rule. An amendment should also be made to the database rule, which exempts from the scope of the database rule web transmissions falling within the ambit of Chapter 1, Section 6, first paragraph, second sentence YGL. lag om ändring i tryckfrihetsförordningen Härigenom föreskrivs i fråga om tryckfrihetsförordningen1 dels att 13 kap. 6 § skall ha följande lydelse, dels att det i lagen skall införas en ny paragraf, 14 kap. 4 §, av följande lydelse. I fråga om skrift som trycks utom riket och som utges här men som inte huvudsakligen är avsedd för spridning inom riket och för vilken inte heller utgivningsbevis finns gäller bestämmelserna i 1 kap. 1 § tredje och fjärde styckena angående meddelande och anskaffande av uppgifter och underrättelser för offentliggörande om inte 1.meddelandet eller anskaffandet innefattar brott mot rikets säker- 2.meddelandet innefattar utlämnande eller tillhandahållande som avses i 7 kap. 3 § första stycket 2; 3.meddelandet utgör uppsåtligt åsidosättande av tystnadsplikt. Första stycket tillämpas också i fråga om en skrift som inte ges ut i , oavsett om skriften trycks här eller utomlands. Här- vid jämställs med den som läm- nar meddelande för offentlig- Första stycket tillämpas också i fråga om en skrift som inte ges ut i , beträffande med- delande och anskaffande här i landet, oavsett om skriften trycks här eller utomlands. 1 Tryckfrihetsförordningen omtryckt 2002:908 görande den som på annat sätt medverkar till framställning i periodisk skrift såsom författare eller annan upphovsman. Är meddelandet eller anskaf- fandet straffbart enligt vad som följer av första och andra styck- ena, gäller vad som är föreskrivet därom. Mål angående ansvar eller enskilt anspråk på grund av brott som sagts skall handläggas som tryckfrihetsmål, när inte 12 kap. 1 § andra stycket tredje meningen har motsvarande tillämpning. I fråga om rätt till anonymitet för meddelaren gäl- ler vad som är föreskrivet i 3 kap.; bestämmelsen i 3 § 3 skall dock omfatta även annat brott mot rikets säkerhet än som där avses. ställs med den som lämnar med- delande för offentliggörande den som på annat sätt medverkar till framställning i periodisk skrift såsom författare eller annan upphovsman. Är meddelandet eller anskaf- fandet straffbart enligt vad som följer av första och andra styck- ena, gäller vad som är föreskrivet därom.