sou · H4B358 · 2016-09-15 00:00:00 — An expansion can therefore be deemed desirable for reasons of principle. However, we do not consider that such an expansion is possible if the fundamental principles in the existing freedom of the press and freedom of expression system are also to be upheld. The applicability of these fundamental laws to the other media forms discussed risks becoming unclear, to the detriment of both those operating the platform and anyone communicating on it. Moreover, through expansion, the fundamental laws could affect actors who have no interest in constitutional protection and are not willing to submit to the liability that follows from constitutional protection. We therefore consider that the link to traditional media in order to obtain automatic constitutional protection should remain. In the future too, however, other media forms will have the opportunity to apply for a certificate of publication and thus obtain constitutional protection for their database activities. The link to traditional media is expressed in the existing regulation that there has to be an editorial staff for a printed newspaper or for a radio or television programme that provides content in the database in order for constitutional protection to be available. One issue that has been discussed in this context is which editorial staff should be regarded as providing content in the database when several legal persons are involved. We consider that the term ‘editorial staff’ in the database rule has been established in practice in a satisfactory and we do not see any reason to propose any amendments in this respect. Constitutional protection for print on demand, eBooks and audiobooks Print on demand, eBooks and audiobooks can currently be covered by constitutional protection under the database rule. This means that one editor has been appointed by the publishing company as liable for the content. In line with the terms of reference, we have carried out a survey on the use of print on demand. The survey shows that the production and distribution of print on demand occur in different ways, often using intermediaries that own the databases. This raises questions about whether the conditions for protection under the database rule have been met, for example whether the publishing company provides the content in such a way as is necessary in order to enjoy constitutional protection under the database rule. However, we do not consider that there is reason to change protection under the database rule with regard to print on demand. Another issue is the fact that there is shared liability for content that is available both as a printed book and as print on demand, an eBook or an audiobook. In these cases, the author is liable for the contents of a printed book whereas an editor appointed by a publishing company, for example, is liable for the contents of the book when it is distributed as print on demand, an eBook or an audiobook. We believe that the possibility should be introduced to consolidate liability for the different forms of distribution. We have discussed various ways of achieving this, i.e. by linking protection to individual copies and individual files. However, in our view this kind of system is difficult to reconcile with the foundations of the freedom of the press and freedom of expression system. We therefore do not propose such a solution. Instead, we have concluded that the problem of divided liability should be addressed by expanding the ‘supplement rule’ in Chapter 1, Article 7, second paragraph of the FPA. In its current wording, the supplement rule is intended to consolidate liability for newspapers provided in printed form and in the form of talking newspapers. We consider that the supplement rule should also apply when a book in printed form is provided as print on demand, an eBook or an audiobook in a database covered by the FLFE. This would enable liability to be attached to the author. This kind of solution raises separate questions about statutory limitations for database contents concerning opinions that include offences against the freedom of the press. We believe that the statutory limitation period should be calculated from when the content was published in the database. This kind of system would mean that certain content of a database that represents an offence may remain in place after the statutory limitation has been reached. We therefore propose provisions stating that a court may decide, following a claim from the Chancellor of or the injured party, that certain material should be removed from the database. In cases that will not be included in the proposal to expand the supplement rule, we consider that it should be possible for the author, by being appointed the editor of the part of the database that contains the work in the form of print on demand, an eBook or an audiobook, to be liable for the content. Given the forms of distribution for talking newspapers, we also propose that the existing supplement rule be expanded to also apply to talking newspapers provided in the form of content in a database. Users’ comments and external information suppliers In order for constitutional protection to apply under the database rule in Chapter 1, Article 9 of the FLFE, one prerequisite is that the content in the database can only be modified by the person running the operation. The more detailed implications of this provision can be discussed when the person running the operation hires an ‘external information supplier’. The question also becomes relevant when there is external material in the database, e.g. users’ comments or links to other websites. With regard to external information suppliers – e.g. people tasked with independently updating a blog on a media company’s website or a production company that looks after parts of the website – we consider, in light of current practice, that there is no need to make the legislative text clearer with the aim of clarifying constitutional protection in these cases. Continued developments through practice will also provide greater opportunities to take account of developments in the area. In order for constitutional protection to apply to a database that also contains external material (e.g. users’ comments or links to other websites), practice requires that the editorial content (the content from the person running the operation) is clearly separated from the external material. We have considered whether the legislative text should clarify how this separation should be achieved, but we have concluded that such a clarification is not necessary. We believe that this issue too should be dealt with in the application of the law. Another question we touch on is what the consequences would be for the application of the FLFE to a website if editorial material is not adequately separated from external material. The assessment of the Supreme Court in case NJA 2014, p. 128 (‘Juridikfronten case’) can be interpreted to mean that constitutional protection disappears for the entire website if the editorial content is not separated in a sufficiently clear way. In our view, there is no reason to allow the consequences of inadequate separation of content to be so drastic. We therefore propose a provision stating that – even in the event of inadequate separation of content – constitutional protection remains for such content that clearly originates from the person running the database operation. One example of such material is an opinion piece or material that has been written by a newspaper’s journalists. According to one view, there are differences in constitutional protection, with regard to external material, between databases with a certificate of publication and those with automatic constitutional protection. We propose a clarification stating that constitutional protection is to be considered in the same way in this regard, that is to say that constitutional protection applies to editorial material when it has been separated. The existence of external material on a website with a certificate of publication will thus have the same consequences as when it appears on a website with automatic constitutional protection. This also means that the special rule we propose in the event of inadequate separation of content will also apply to databases with such a certificate. media companies’ separate platforms on social media The majority of traditional mass media companies are now also present on social media, e.g. Twitter and YouTube. The terms of reference state that mass media companies’ separate platforms on social media currently lack constitutional protection. As part of our review of the database rule we analysed this issue. assessment is that the definite conclusion stated in the terms of reference – namely that mass media companies’ platforms on social media currently always lack constitutional protection – can be questioned. In our opinion, it should be possible to view the legal situation as providing leeway for making a more nuanced assessment in each individual case. Crucial to the assessment, then, is whether the platform can be seen as a database in its own right in the meaning of the database rule and whether the person running the operation has any control over the content. In light of this, it is not necessary in our view to amend the legislation concerning mass media companies’ actions on separate social media platforms. Statutory limitation rules and liability for databases Developments in the media industry mean that older material, e.g. on newspapers’ websites, is no longer removed to any a great extent. As published material is not normally removed, the current rules mean that the information in databases does not normally reach statutory limitation. The statutory limitation period does not begin, and criminal and tort liability never cease to apply. Thus, the reasons usually given in support of short statutory limitation periods in the area of freedom of the press and freedom of expression do not gain any traction. This applies, among other things, to the idea that the permissibility of an opinion is to be assessed in accordance with the views and values that applied at the time of publication. Under the current system, for example, an article on a website could be examined on the basis of social values that emerged long after the original publication. Moreover, new circumstances may have emerged making the article appear to be a violation of freedom of expression that should be prosecuted, despite the fact that this assessment may not have seemed justified at the time the article was published. It is also conceivable that it would be incompatible with Convention for the Protection of Human Rights and Fundamental Freedoms if someone were to be permitted to bring an action concerning defamation due to an article that was published more than 15 years ago but that is still available on the newspaper’s website (see the statements of Court of Human Rights in the case vs the ). A related problem has to do with the great scope that the large media companies’ websites have achieved. This issue did not appear to be relevant when the current statutory limitation rule was introduced. In light of the size of databases, the current system of liability could have consequences that are questionable from a criminal law perspective against the background of the fact that the editor is always considered to have read the opinion in advance and approved its publication (the ‘presumption of intent’). These circumstances have particular consequences in connection with a change in editor for a large database. The contents could have been entered into the database following a decision by a previous editor. The material could be so extensive that there is no realistic possibility of the new editor getting to grips with it when taking up their duties (see decision by the Supreme Court in NJA 2013, p. It should be stressed that the problems with the issue concerning liability for media companies’ large databases can be remedied with divided liability, so that several editors are appointed for the same database. However, measures of this kind do not seem sufficient. Efforts should instead be made to ensure that the regulation better interacts with developments in the area of internet publication than is currently the case. This should more clearly build on the idea that the editor is liable for publications that he or she has approved, or at least has had the opportunity to take a standpoint on. The conclusion of the above is that the provisions on an editor’s liability should be amended in relation to older publications. We have considered several possible options for creating a better system with regard to the issue of statutory limitation for opinions on websites covered by the FLFE. However, we believe that the existing statutory limitation system should remain in place. Freedom of expression offences on a website must therefore, in future too, be considered to continue until the information has been removed. See annex 5 for a description of one of the other options we have discussed. However, a limitation is to be introduced concerning the editor’s liability for material in a database that is older than one If the editor wishes to assert that such a limitation on liability exists, he or she needs to cite this. The limitation on liability is not to apply if it is plausibly demonstrated that the information was first provided no more than one year ago. If a limitation on liability applies, the Chancellor of or the injured party should have the opportunity to inform the editor that a database contains certain older information that may represent a freedom of expression offence. If the editor then decides not to remove the opinion within two weeks, he or she is to be considered to have decided to re-publish the opinion. The new decision to publish is to be considered to have taken place when the two-week deadline has expired. The editor is liable in this case for the opinion in question. However, if the editor chooses to remove the material within the two-week deadline, he or she cannot be held to account. The opportunity will also be introduced for the injured party to contact the media company to make a claim for damages, even if the editor – as a result of a liability limitation – cannot be held to account and the information has been removed. Personal privacy and constitutional protection The rules contained in the Personal Data Act concerning protection of sensitive personal data are not applied when the FPA and the FLFE are applicable (see Section 7 of the Act). Act implements the Data Protection Directive which, as of 25 2018, will be replaced by the new Data Protection Regulation. Like the Data Protection Directive and the Act, the Data Protection Regulation contains a fundamental ban on handling sensitive personal data (Article 9.1). The assessment has been made that the relationship to the Constitution, i.e. that the regulation will not apply in the areas of the FPA and the FLFE, will be the same when the new regulation enters into force. We have had an investigation conducted into databases with a certificate of publication that corresponds to the investigation conducted by the Freedom of in 2009 and 2011. This survey essentially shows the same results as those The overall impression is still that these operations are being run in a serious and responsible . However, the review provides a different picture too in some respects, which gives cause for concern with regard to protection of personal privacy. It is clear that a number of certificates refer to what are purely search engines. As a rule, this concerns various online services offered on commercial grounds and that involve the public being given access to information about private individuals from public documents and databases. Operations of this kind are sensitive in terms of personal privacy and it is clear that private individuals risk suffering damage if the information in question is spread to the public. The need to allow operations of this kind to be fully protected by the fundamental principles of freedom of the press and freedom of expression seems limited. The current situation means that the constitutional system concerning these search engines risks con- sequences that are not reasonable. As has already been mentioned, there is a greater risk of private individuals being subjected to serious privacy violations if registers that contain only personal data come under the Constitution and are thus not covered by the personal data regulations. The problem becomes particularly tangible if a database that is protected by the Constitution is used to handle and provide information that would be considered particularly sensitive in other contexts, e.g. if someone is the defendant in a criminal case. Against this background, we consider that there is reason to limit constitutional protection for certain types of search engines and instead allow provisions in law. We therefore propose an explicit exception in the FPA and the FLFE targeting certain search engines that provide sensitive personal data and information about violations of law, etc. All data compilations that have been organised so that it is possible to search for and compile the information in question are to be subject to the exception. One prerequisite for exceptions to apply is that there are – considering the operations and the forms in which the data compilation is made available – specific risks of improper violations of the personal privacy of the people in the register. The exception in question has been designed as a ‘delegation provision’, which will create scope to regulate the issue through means other than the Constitution. No preconditions should be introduced to obtain a certificate of publication for database activities that target the contents of what is to be published. International judicial cooperation in the area of the FPA and the FLFE Our current national regulations give very limited opportunities to assist other countries in the area of freedom of the press and freedom of expression regarding judicial cooperation. Government’s standpoint in the ‘case’ can be considered to clarify that cannot provide any international legal assistance whatsoever in criminal cases if the FPA and the FLFE apply. However, in a civil enforcement case, it was possible to provide assistance on an issue linked to the regulation in the FLFE (NJA 1998, p. 817, ‘case’). The current Swedish position on the issue of international legal assistance cannot be considered to be in step with developments in the EU. Cooperation in the criminal law area, above all, is becoming ever deeper. In the existing EU legal instruments, there is typically no clear division between issues concerning freedom of the press and freedom of expression and issues concerning the legal order in other respects, as is characteristic of the Swedish regulatory framework. The problem from ’s point of view is aggravated by the fact that our national regulations are detailed and have a broad field of application. The Swedish position – which is based on the view that various statements in the introductory texts to the existing EU legal instruments mean that national exceptions can be made – has not been the subject of a more in-depth EU legal examination. However, it is debatable whether this position covers all situations in which legal assistance may be relevant and whether it rests on a sufficiently solid foundation to be sustainable in the long term. Beyond EU legal cooperation, has entered into a large number of agreements concerning international legal assistance in various forms, not least within the framework of cooperation in . Under these legal instruments, freedom of the press and freedom of expression aspects are not given special treatment through exceptions or reservations. In light of this, we come to the same fundamental conclusion on this issue as previous committees. An explicit option of providing international legal assistance in the area of the FPA and the FLFE should therefore be introduced. In legal terms, such a regulation would rest on the ‘principle of exclusivity’, i.e. that every form of intervention due to abuse of freedom of the press or freedom of expression must be supported by FPA or FLFE. Moreover, the starting point should be that, in principle, the same high level of protection must apply when providing international legal assistance in the area of the FPA or the FLFE as if an intervention had occurred within the framework of a Swedish national procedure (e.g. if the Chancellor of initiates a preliminary investigation into freedom of the press or freedom of expression offences). As regards the choice between various legal-technical methods to achieve this, we consider that a more generally worded regulation should be introduced. However, there must be a ban on providing legal assistance if this is in contravention of ’s general principles of law in the area of freedom of the press and freedom of expression. In an assessment of a request for legal assistance, special consideration should be given to the fact that such assistance may not be used to circumvent the Swedish rules, e.g. concerning sole liability and freedom of communication of information. An application must not be approved if the requested measure appears to be irreconcilable with the interest of safeguarding a free debate and general information provision in . Freedom of communication of information is to be considered a Swedish general principle of law, like the principle of sole liability. Primary liability rests with the person who has exercised the editorial right to decide on the contents. With books, it is the author who is liable. Dual criminality must be a prerequisite for an application for international legal assistance to be made. The specific statutory limitation periods in the area of freedom of the press and freedom of expression must not be regarded as Swedish general principles of law in all situations. In order for legal assistance to be provided, the foreign procedures in question must at the very least fulfil the require- ments that follow from Convention for the Protection of Human Rights and Fundamental Freedoms. should not apply to the requirement that the issue be examined following the involvement of a special prosecutor and jury. A requirement will be introduced stating that the Chancellor of must be given the opportunity to give an opinion before international legal assistance is approved in issues concerning criminal liability. Moreover, a provision will be introduced meaning that the existing requirement for the Government’s consent for prosecuting certain crimes will also apply for international legal assistance. A delegation provision on product information etc. One consequence of determining the scope of application of the FPA and the FLFE on the basis of the communications technology used may be that constitutional issues arise in contexts that do not have a typical freedom of the press and freedom of expression profile. Such an area concerns warning texts, declarations of content and other product information on and inside packaging (including cigarette packets or leaflets that come with pharmaceutical products). At the same time, the legislator – not least at EU level – has deemed it necessary to regulate the design of this type of text. These measures are aimed in the majority of cases at protecting public health, but there are also other purposes, e.g. environmental or consumer protection. Exceptions are already made from the FPA’s and the FLFE’s rules to enable requirements concerning product information, for example. This is done on the basis of an interpretation of the purposes of these fundamental laws.