sou · H4B37 · 2016-02-03 00:00:00 — At the same time, it is clear that these new ways of communicating and spreading information entail risks for privacy in the sense that an individual may be subjected to violations of their privacy by other individuals. This includes the wide dissemination of information via the internet, difficulties of removing information once made available on the internet, the increased opportunities for reaching other people with threats and violations, and the favourable conditions for anonymity. This development means that the protection provided in criminal law must be reviewed so that it more clearly covers new forms of communication and other relevant phenomena that did not exist when the legislation came into being. There are also several research reports showing that women and girls are subjected to offences of a sexual nature that violate their privacy. At the same time, the research shows that boys, too, are subjected to violations linked to sexuality and appearance. Moreover, it can be pointed out that offences that violate people’s privacy often constitute what are known as ‘hate crimes’. Developments in society – primarily the increased opportunities for communication and information dissemination – also mean that the criminal area may need to be expanded. The protection provided by criminal law should concentrate on things that cannot be combated with other means. A prerequisite for criminalisation should be that the behaviour can cause harm or personal suffering to such a degree that there is an interest in society to provide protection in the form of criminal law. The protection provided by criminal law should, therefore, cover attacks on people’s privacy that are so serious that criminalisation is necessary. We propose a new penal provision on unlawful violation of privacy We propose the introduction of a new penalty provision in Chapter 4 of the Swedish Penal Code on unlawful violation of privacy. It will entail criminal liability in certain cases for those who violate someone else’s private life by spreading images or other information in a way that is intended to cause tangible harm to the person who is the subject of the information. Through the internet and other electronic communication, the possibilities of spreading information about other people that violates their privacy have increased considerably. New protection interests have therefore arisen and there is, in our view, a considerably greater need for criminal law to protect people’s private life and personal privacy. has a positive obligation under Article 8 of Convention on Human Rights to give individuals effective protection of their private life. However, it must be ensured that a new criminal law provision strikes a good balance between protection of people’s private life and protection of freedom of expression. The current criminal law, civil law and public law provisions that exist to protect against the spread of information that violates people’s privacy have, to some extent, other points of departure and protection interests than privacy and private life, and are in our view not at all adequate. We have therefore come to the conclusion that new protection in criminal law in Chapter 4 of the Swedish Penal Code against more serious cases of violation of a person’s private life through the spread of information that is sensitive in terms of privacy should be introduced – unlawful violation of privacy. In our view, the new provision should only cover serious and obvious cases of violation of a person’s private life and violations of personal privacy. The provision is therefore limited to the kind of information that an individual would typically have strong reasons for secret. The new penalty provision on unlawful violation of privacy is to apply to a person who violates another person’s private life by spreading: images or other information about someone’s sex life; images or other information about the state of someone’s health; images or other information about someone being subjected to a serious crime; images of someone in a very vulnerable situation; or images of someone’s naked body. The provision is not to be limited exclusively to this information; criminal liability is to also apply to the spreading of similar images or information about someone’s private life. Criminal liability exists only when the spreading of the images or information was intended to cause tangible harm to the person who is the subject of the information. By harm, we mean harm to a person’s private life or personal privacy. When private information is spread to others against someone’s will (or at least without their valid consent), a violation has occurred of the private life of the person who is the subject of the information. The requirement that the spreading must have caused tangible harm means that this should refer to situations in which the spreading of information may result in mental suffering and other serious negative personal consequences for the individual. Under our proposal, information is to be deemed to have been spread if it has been made accessible to more than a few people. Criminal liability is to be independent of the technology used to spread the information, e.g. via the internet or other electronic communications, through paper copies or orally. Under our proposal there must be an exemption from criminal liability in cases in which the act was defensible considering the purpose and other circumstances. When assessing the issue of criminal liability, a balance must be struck between protection of private life and safeguarding freedom of expression. This may apply, for example, in cases where there was a clear public interest in the information being spread. The penalty for ordinary offences is to be a fine or a maximum of two years’ imprisonment. Under our proposal, there is also to be a category for gross offences. For a gross offence, the punishment is to be imprisonment for at least six months and at most four years. When assessing whether the offence is gross, special attention must be given to whether the act – considering the content of the image or information, the way in which it was spread and how widely it was spread – was intended to cause very tangible harm to the person who is the subject of the image or the information. Secrecy is to apply in court when a case of unlawful violation of privacy is examined. The same kind of secrecy must apply as currently applies to cases of sexual offences, offences against the duty of confidentiality, extortion and human trafficking. Under our proposal, unlawful violation of privacy is to be prosecuted by a prosecutor only if the injured party reports the offence for prosecution or if prosecution is in the public interest. In addition, we propose that the penalty provision on unlawful harassment in Chapter 4, Section 4(b) of the Swedish Penal Code be expanded to also cover acts that constitute unlawful violation of privacy. The violation of integrity offences described in Chapter 4, Section 4(b) of the Swedish Penal Code will cover unlawful violation of privacy without the need for any legislative amendment. We have conducted a review of the current penalty provisions in the Swedish Penal Code for the protection of personal privacy We propose that the provision on unlawful threats in Chapter 4, Section 5 of the Swedish Penal Code should be amended in two respects. Firstly, our proposal states that a threat is punishable if it is intended to cause serious concern, instead of serious fear, as previously. Secondly, the provision’s area of application is to be expanded by making it punishable to issue threats through more types of criminal act than is currently the case. We have made the assessment that the provision on unlawful threats does not match the needs that currently exist for protection in criminal law. New opportunities for electronic communications increase the risk of crimes against personal privacy. In our assess- ment, this brings with it the need for protection in criminal law against threats that are intended to subject someone to crimes against their privacy. The area of application of the provision on unlawful threats should therefore be expanded to include threats of crimes against an individual’s freedom or peace. Our proposal means that it could be punishable to threaten to spread images of another person that are very sensitive in terms of personal privacy, i.e. to threaten to subject someone to an unlawful violation of privacy. It may also be punishable to threaten someone with a breach of domiciliary peace. A broadening of the provision on unlawful threats also means, in our assessment, that veiled threats of criminal acts may be subject to criminal liability to a greater extent than at present. We also propose that the provision on unlawful threats be made clearer and that the level for criminality should more clearly reflect how the provision has been applied by the courts. With the new wording that we propose, it will no longer be a prerequisite that the threat was intended to cause serious fear; it will suffice for the threat to have been intended to cause serious concern. In practice, the new wording means, in our assessment, above all an adaptation to and a codification of how the provision is largely already applied by the courts. Through the wording that we propose, an individual is to be prosecuted for unlawful threats if he or she has threatened another person with a criminal act in a way that is intended to cause the threatened person serious concern for their own or another’s safety in terms of their physical well-being, property, freedom or integrity. We propose that the provision on molestation in Chapter 4, Section 7 of the Swedish Penal Code be amended in certain respects. Our proposal makes clear that acts that may be tangible violations of integrity are covered by criminal liability. The provision is also adapted to new ways in which people communicate. We have assessed that the provision on molestation should be modernised so that it also clearly covers new ways in which people can communicate and come close to others in such a way that violates the integrity of others. The decisive factor for determining criminal liability should therefore be if a tangible violation of integrity could occur – not the in which it could occur. The assessment is to be based on the circumstances in the individual case. However, criminal liability must be determined on the basis of a generally held norm for what represents unacceptable behaviour and what individuals should not be expected to tolerate. This is expressed in our proposal in that a prerequisite for criminal liability is that the matter at hand is a ruthless act against another person that was intended to violate that person’s integrity in a tangible way. The previous examples of various punishable acts in the provision will be removed. The provision’s new wording covers various types of ruthless acts against another person that involve attacks on the other person’s private and protected sphere. This means that the penalty provision covers a range of different ruthless behaviour, such as: attacks on the physical and spatial sphere; other attacks that disturb a person’s peace, and state of mind; and acts that force another person to tolerate nuisances or carry out arrangements within their private sphere. Through the new wording we propose, the person acting ruthlessly against another person in a way that is intended to violate that person’s integrity in a tangible way will be prosecuted for molestation. The new wording means that new ways of communicating and directing attacks against another person via the internet will become more clearly punishable. For criminal liability to apply, there will no longer be the prerequisite that an attack must have been perceived as an attack by the victim at the time it occurred. The offence is completed when a physical line is crossed or when the attack is perceived as such by the victim. means that one-off comments under certain circumstances will constitute punishable molestation in cases where the content and way they are communicated can constitute a tangible violation of integrity. This means an expansion of the criminal area to a certain extent. Defamation and gross defamation We propose that the provision on defamation in Chapter 5, Section 1 of the Swedish Penal Code be modernised and designed in line with how it has been applied. Moreover, we propose that the criteria for gross defamation in Chapter 5, Section 2 of the Swedish Penal Code be made clearer in one respect. We have analysed the protection provided in criminal law for what is known as ‘objective honour’ against the background of developments in society and the new ways people communicate, which are constantly developing. The area of application of the defamation offence should, in our view, be developed in line with how the provision is applied in practice and have a protection interest that corresponds to the current need to protect individuals from having their reputation damaged. The defamation offence should also, as has so far been the case, provide scope for a balance between freedom of expression and protection of private life, and it should be possible to develop the provision’s area of application in pace with changes in society and case-law from Court of Human Rights. The assessment of which information it should be punishable to disclose – and also the special rule on assessing whether prosecution proceedings can be initiated – must in our view be interpreted in the light of how values in society change over time. We have also analysed whether the provision – concerning the degree of determination that is required – suitably reflects what type of information should be included or whether the threshold in practice has been set too high or too low. We have concluded that the requirement for determination in the information that can be covered by defamation has been set relatively low in practice. However, the threshold has not been set too low in practice. In our view, there is no reason to try to achieve a development in which the threshold is set even lower, nor is there reason to set it higher. The lower threshold for the determination of a piece of information that has been defined in practice should therefore continue to apply. Under the new wording we propose, the person who discloses information about someone being criminal or any other disparaging information about someone will be prosecuted for defamation, if the information was intended to damage the reputation of the person who is the subject of the information. Under our proposal, the criterion ‘reprehensible in their way of life’ has been removed, as the expression now seems to be a superfluous example that directly focuses on moral values concerning certain ways of life. Under our proposal, information about someone’s way of life, living habits, behaviour or similar circumstances is instead covered by a general rule that criminalises the disclosure of disparaging information. As previously, no one should be made liable if it was justifiable to disclose the information and it was true, or the person who disclosed the information had reasonable grounds for doing so. This means that the court, in each individual case, has the possibility of striking a balance in relation to the interest of freedom of expression. When assessing whether a defamation offence is gross, it should in our view be possible to a greater extent than is currently the case to consider certain aspects concerning the internet and other electronic communications. This is achieved by assessing the spreading of information in a more nuanced way. Under our proposal, when determining whether a defamation offence is gross, the content of the information, the way it was spread and how widely it was spread should be considered. We propose that the provision on insulting behaviour in Chapter 5, Section 3 of the Swedish Penal Code make clearer that only acts that can violate a person’s self-esteem or dignity are covered by criminal liability. Through our proposal, the description of which acts can constitute insulting behaviour will also be modernised. We have made the assessment that the originally stated protection interest concerning the defamation offence – to protect against attacks on a person’s sense of honour and their ‘subjective honour’ – now appears obsolete. In our view, the provision is probably not currently fully applied with this starting point either. However, in our view there is no reason to abolish the provision. Instead, the provision should explicitly define as a criminal offence only acts that may be a violation of another person’s self-esteem or dignity. The assessment is to be based on the circumstances in the individual case. However, criminal liability must be determined on the basis of a generally held norm for what represents unacceptable behaviour and what individuals should not be expected to tolerate. This is expressed by the provision stating that the act must have been intended to violate someone’s self-esteem or dignity. The description of the criminal act in the provision is to be amended and modernised. Under the wording we propose, criminal liability will presuppose that someone through accusations, disparaging comments or humiliating behaviour acts against another person in a way that is intended to violate the other person’s self- esteem or dignity. Unlawful threats, defamation and insulting behaviour as offences under the Freedom of the Press Act and the Fundamental on Freedom of Expression Unlawful threats, defamation and insulting behaviour are offences under the Freedom of the Press Act and the Fundamental on Freedom of Expression as they are included in the catalogue of offences in the Freedom of the Press Act. We propose that the descriptions of the offences in the catalogue of offences be adapted in terms of language and content to the amendments we propose to the Swedish Penal Code regarding unlawful threats, defamation and insulting behaviour. Through the reference in the Fundamental on Freedom of Expression, the amendments will also have an impact on the area of application of this . We propose broadening the liability of providers of electronic bulletin boards We propose that criminal liability under the Act on Responsibility for Electronic Bulletin Boards (1998:112) (the BBS Act) be expanded in certain respects. The BBS Act establishes criminal liability in certain cases for a person who provides an electronic bulletin board, a service for electronic communication of messages where users can send in their own messages and read those of others. The purpose of the BBS Act is to place a certain responsibility on those who provide electronic bulletin boards to exercise supervision and also an obligation to take action so that messages that clearly constitute certain offences, such as inciting rebellion and incitement to racial hatred, are removed or prevented from being spread further. We have noted that there is a need to review the BBS Act in a comprehensive and coherent way in light of the technological developments that have taken place since the Act came into existence. However, this is not within the framework of our remit. We have nonetheless assessed that an expansion of the criminal area – provided that there are sufficient grounds – could be undertaken within the framework of the current BBS Act. We have arrived at the conclusion that there are strong grounds for broadening liability under the BBS Act to cover more serious offences against personal privacy because liability for the provider can in some cases be the only available means to prevent the spread of violation of privacy offences via the internet. However, we have noted that too broad a liability for the provider may result in a disproportionate restriction of freedom of expression and the risk of an unjustifiably strict self-censorship, ultimately leading to a situation in which individuals are offered fewer forums to express their views and form opinions. In our assessment, the provider’s liability can be broadened, if it is not broadened to such an extent that freedom of expression cannot be protected and the requirement for legal certainty and legality cannot be met. We propose that unlawful threats and unlawful violation of privacy should be covered by a broadening of criminal liability under the BBS Act. With regard to these types of offences, there is, in our view, a great need – as far as both the person subjected to the crime and society as a whole are concerned – to be able to prevent spreading via electronic bulletin boards. For both of these types of offence, the provider also has the realistic possibility of deciding whether a message constitutes what is referred to in the different penalty provisions. In our view, this also applies taking into consideration the requirement that it must be clear to the provider that the message is of such nature. We propose that the right to criminal injuries compensation be expanded to cover certain offences against libel laws We propose that the possibilities to receive criminal injuries compensation under the Criminal Injuries Compensation Act (2014:322) be expanded in one respect. Under the current rules, criminal injuries compensation can be paid for the harm caused by someone seriously violating another person by committing an offence that is an attack on that person, their freedom or integrity. The fact that ‘honour’ is not included here means that criminal injuries compensation cannot be paid for a violation through an offence against libel laws. We have noted that the possibilities of spreading images or other information about others have grown considerably through the development of the internet and other electronic communications. In our view, this entails a greater risk of individuals being subjected to crimes that involve serious violations of their personal privacy or damage to their reputation. There are therefore strong grounds for expanding the possibility of receiving criminal injuries compensation to cover situations in which someone has been subjected to a serious offence against libel laws. We therefore propose that the right to criminal injuries compensation should apply to violations involving gross defamation and that criminal injuries compensation be determined according to the rules that apply for offences that currently entail the right to compensation for a violation. If our proposal for a new penalty provision for unlawful violation of privacy is introduced in Chapter 4 of the Swedish Penal Code, certain offences that are currently considered to be gross defamation will instead come under the provision on unlawful violation of privacy. This entails the right to criminal injuries compensation in the same way as other offences regulated in Chapter 4 of the Swedish Penal Code do. Other issues we have considered without making proposals The proposals we have presented entail a certain expansion of the criminal area and at the same time the penalty provisions will become more modern and clearly worded. This means that it will be possible to prosecute more offences that violate personal privacy than is the case today. The provisions are generally worded and they provide for greater protection for everyone who is subjected to offences against their personal privacy. This also means that those who are subjected to offences of a sexual nature that violate their privacy and those who are subjected to offences with racist motives receive greater protection in criminal law. In addition to this, we have noted in our inquiry work that attacks against various groups of people may raise special questions.