sou · H8B345 · 2020-08-20 00:00:00 — This exten- sion will be limited to transmissions that have a particularly strong connection to and that in many respects can be perceived to be Swedish. This means that only programmes that are retransmitted here and are mainly intended to be received here will be covered. For the last-mentioned criterion to be met, it will not be sufficient for the transmission of a programme to be directed to in a purely technical sense; other factors that might be taken into account in- clude whether the programme is in Swedish, whether it is aimed at a Swedish audience and whether it is recorded or produced here. However, since – despite the strong Swedish connection of such programmes – it will in reality be a matter of programming activities carried on abroad, it may be difficult to hold anyone liable if the provisions on appointing an editor are not followed. therefore proposes that, in such cases, the chain of liability should be supplemented to include liability for the owner of the enterprise operating the transmission activities. Liability will pass to the owner in cases where the operator of the transmission activities had no known domicile in at the time of the offence and, in addi- tion, cannot be reached here during the court proceedings. Constitutional protection for the making of images, descriptions and measurements of protected objects The purpose of the Installations Protection Act is to give certain , areas, installations and other objects enhanced protection, inter alia against sabotage, terrorist offences and espionage. The range of facilities and sites that can be designated as protected objects is set out in the Act. A decision to designate, for example, a or an area as a protected object means that access to it is prohibited. This prohibition of access can be supplemented with, or replaced by, a prohibition on the making of images, which includes the making of images, measurements or descriptions of or within the protected object. Violations of such a prohibition constitute a criminal offence. It used to be the view that a prohibition on the making of images under the Installations Protection Act could also be upheld in cases where it was a matter of procuring information for publication in media covered by the Freedom of the Press Act or the Fundamental on Freedom of Expression. In the case reported in NJA 2015, p. 298, however, the Supreme Court made it clear that a prohibition on making images under the Installations Protection Act does not take aim at the in which the information is procured, but at what is depicted. A violation of such a prohibition therefore cannot be equated with the methods of procuring information that are ex- cluded from constitutional protection in Chapter 1, Article 12, point 6 of the FPA and Chapter 1, Article 18 of the FLFE. It is thus not possible to uphold a prohibition on the making of images when it is a matter of procuring information for publication in media with constitutional protection. With the case cited as a starting point, the Committee notes that the application of a prohibition on making images comes into con- flict with the freedom to procure information when such images are procured for purposes of publication, and that, for example, seizure and other coercive measures taken in conjunction with an interven- tion could constitute inadmissible obstructive measures. On the other hand, it is the Committee’s assessment that these provisions do not, as such, conflict with the prohibition of censorship, i.e. the prohibition of prior scrutiny. In the Committee’s assessment, moreover, the fact that a pro- hibition on the making of images cannot be upheld when those images are made for purposes of publication entails a risk of information about a protected object being obtained and disseminated and, for example, possibly coming to the knowledge of a foreign power. In the Committee’s view, it is fundamental to ’s security that the critical assets of the total defence system can be safeguarded. The provisions of the Installations Protection Act are an important element in achieving this, and it has never been the intention that the free- dom to procure information should take precedence in this context. The Committee considers that there is reason to limit the freedom to procure information when it comes to the making of images, descriptions and measurements of protected objects, to enable these critical assets to be safeguarded in the intended. has considered various options, including amend- ments to the Installations Protection Act, but has concluded that a delegation provision should be introduced in the fundamental laws, creating scope for ordinary legislation prohibiting the making of images of and within protected objects. Constitutional protection for internet transmissions The main rule on transmissions in Chapter 1, Article 3, first para- graph of the FLFE means that traditional linear transmissions of television and radio programmes automatically enjoy constitutional protection under the Fundamental on Freedom of Expression. The second paragraph contains the “internet transmission rule”, which covers transmissions via the internet that are either broadcast live or consist of pre-recorded material that is played back without the receiver him- or herself being able to influence the starting time. These transmissions also fall within the scope of automatic constitutional protection. The internet transmission rule was originally intended to apply chiefly to traditional television broadcasts that are simultaneously transmitted over the internet. With advances in technology, how- ever, the rule has come to be applied much more broadly. The Com- mittee has commissioned a survey of the kinds of material now available in terms of recordings of sounds and images, and of the platforms that exist for internet transmissions. The survey shows that the range of material available is extensive and that basically anyone can easily start a transmission, e.g. on Facebook, YouTube or Instagram, that could be covered by the internet transmission rule. believes there is reason to assume that internet transmissions occur on a large scale and vary widely in character. Many of those who transmit via the internet are neither aware of nor interested in the protections of the Fundamental on Freedom of Expression, nor do they comply with its rules and obligations. With this in mind, the Committee is of the opinion that the internet transmission rule can no longer be regarded as serving its intended purpose and striking the right balance. has therefore considered whether the rule should be abolished, but has made the assessment that protection for certain internet transmissions should remain in place. The scope of the rule should therefore instead be limited to actors covered by the “database rule”, i.e. actors that enjoy automatic constitutional protection or constitutional protection on the basis of a certificate of no legal impediment to publication (a “publishing certificate”). With such an approach, protection will remain in place for the internet transmissions of the traditional media, among others, regardless of what platform those transmissions occur Protection will also remain for internet transmissions provided by the holder of a publishing certificate. In the Committee’s assessment, a consequence of someone trans- mitting a programme via the internet is that they also secure auto- matic constitutional protection for the other content of their data- bases. In many cases, that consequence is unwarranted. The Com- mittee therefore proposes an amendment to the Fundamental on Freedom of Expression, to the effect that the editorial offices re- sponsible for internet transmissions are no longer given automatic constitutional protection for their databases. However, this will not rule out the possibility of someone who transmits via the internet having constitutional protection for their databases on some other ground, for example as the editorial office of a radio or television programme, or based on a publishing certificate. In connection with this, the Committee also proposes that the reference to the internet transmission rule in the last paragraph of the database rule should be deleted. This is not intended to change the legal position, however. Constitutional protection for certain search services The Freedom of the Press Act and the Fundamental on Free- dom of Expression provide a degree of protection for the personal privacy of individuals through their lists of offences constituting free- dom of the press and freedom of expression offences. Apart from that, there is very limited scope to safeguard personal privacy in the areas covered by these two fundamental laws. Data protection provi- sions, for example, are not applied in cases where they are incom- patible with the fundamental laws. The basic position, therefore, is that actors that enjoy automatic or voluntary constitutional protection are able to freely publish personal data relating to criminal offences. This has paved the way for the emergence of a number of what are purely search services on the internet publishing such data. By searching by name or address for example, users of these services can find out whether a given individual has been convicted of an offence. This is despite the fact that such data have been given special protection under the EU’s Protection Regulation on account of their sensitive nature. In the Committee’s view, making information about the criminal activities of private individuals freely available on the internet creates a risk of serious invasions of their personal privacy. While there may in certain cases be legitimate reasons for gaining access to this type of information, the need for services of this kind to be fully pro- tected by the basic principles of freedom of the press and freedom of expression would seem to be limited. therefore proposes that the existing delegation provisions concerning sensitive personal data should be amended by adding personal data relating to criminal offences to the list of cate- gories of personal data that can be regulated by ordinary law. However, to strike a reasonable balance between freedom of ex- pression and the protection of individuals’ personal privacy, the scope of the delegation provisions should be limited. As is currently the case, one condition for the provisions to apply should be that the personal data in question form part of a collection of data that is searchable or collatable. The delegation provisions should only apply if, in view of the character of the collection of data published, it is clear that there is a particular risk of improper invasion of the per- sonal privacy of individuals. In borderline cases or situations that are difficult to assess, it is important to apply a significant in favour of the interest in wide freedom of expression. When in doubt, the interest in freedom of expression should carry most weight. Constitutional protection for packaging The formal scope of application of the Freedom of the Press Act and of the Fundamental on Freedom of Expression is determined on the basis of the technology used to convey the utterances in question. One consequence of this is that printed packaging is covered by the Freedom of the Press Act, as it is produced using printing technology. According to the Committee’s terms of reference, how- ever, it is open to question whether packaging should be covered by the special constitutional protection afforded by the Freedom of the Press Act. Therefore, the Committee has been asked to consider if it is needed and appropriate to exclude packaging from the scope of application of the Freedom of the Press Act. has weighed up the reasons for and against this. One reason that could support the exclusion of packaging from the Freedom of the Press Act is the issues arising in EU cooperation on regulation of the design of packaging. In negotiations on this subject, puts considerable effort into ensuring that the re- quirements placed on packaging are compatible with the Freedom of the Press Act, even when those requirements can be regarded as justified in other respects. The emphasis on regulation in this area being compatible with the Freedom of the Press Act may also mean that lower priority has to be given to other important issues. In addition, there may be less acceptance among other countries for our fundamental laws if they are invoked too often. Confidence in the fundamental laws may also be undermined in a domestic context if they cover phenomena that are far removed from their core areas. The material exceptions to the scope of application that already exist, however, mean that this is less of a problem than it would otherwise have been. First, there are express delegation provisions that may come into play when it comes to the design of packaging; and second, there are exceptions that have emerged in case law through an interpretation of the purposes of the Freedom of the Press Act. As a result, it is for example possible to regulate certain product infor- mation and pure advertising on packaging. It is not possible, how- ever, to require prior scrutiny of such information, for instance, nor is it possible to regulate the entire surface of the packaging. Some space must be left for business operators to provide with text of their own. ’s view is that text on packaging most commonly has other purposes than those referred to in the Freedom of the Press Act. However, such text may also include utterances that fall within the purposes of the Act. An exception for packaging would mean that purely opinion-forming utterances in that context, for example, would also lose their protection under the Freedom of the Press Act. The protection afforded by the Instrument of Govern- ment is admittedly more flexible and adaptable, but the downside is that that protection is not as strong. In the Committee’s assessment, excluding packaging from the protection of the Freedom of the Press Act could result in less carefully considered regulation of such packaging information as can be considered to fall within the pur- poses of the Act. It could also have spillover effects. In addition, an exception for packaging would mean that, from the standpoint of freedom of expression, it would be treated differently from other printed matter, which means that utterances could be assessed in different ways depending on whether they are printed on packaging or, say, in a brochure. is not convinced that this is a desirable consequence. ’s overall assessment is that, in certain respects, it may be considered problematic that packaging is covered by the Free- dom of the Press Act, but that there are not sufficiently strong reasons for separate regulation of this type of printed matter by excluding it from the protection afforded by the Freedom of the Press Act. therefore does not propose any change in this regard. The “must carry” obligation for complementary services The “must carry” obligation is designed to ensure that a person who receives television through a cable or IP network has access to linear public service television broadcasts in the same way as if they had had access to television through the terrestrial network. This is achieved by provisions of the Radio and Television Act (2010:696) requiring the retransmission of certain television broadcasts. Cur- rently, SVT1, SVT2, Kunskapskanalen and Barnkanalen/SVT24 are retransmitted by virtue of the provisions of that Act. The “must carry” obligation represents a departure from the prin- ciple of freedom of for transmissions by landline (i.e. cable, fibre etc.). Support for this is found in a delegation provision in Chapter 3, Article 2, point 1 of the FLFE. The provision is ex- pressed in terms of programmes. There has been some uncertainty about whether complementary services of the kind needed to make television content accessible to people with disabilities – such as subtitling, interpretation and spoken subtitles – fall within the “programme” concept of the Fundamental on Freedom of Expression, and whether a “must carry” obliga- tion can be imposed with respect to such services. ’s analysis of the programme concept leads it to conclude that the balance of arguments supports the position that accessibility services of the kind described can be regarded as pro- grammes in the sense of the Fundamental on Freedom of This means that the Fundamental permits a “must carry” obligation to be imposed by law with respect to such services, provided that they meet the other requirements of the delegation provision. Given the uncertainty that has existed regarding the scope of the programme concept, however, a clarification in the Fundamental on Freedom of Expression is proposed, to the effect that a “must carry” obligation with respect to accessibility services may be im- posed by law. For this to apply, the accessibility service must be related to a programme that is already subject to a “must carry” obligation. ’s remit has also included an analysis of the pro- gramme concept in relation to other complementary services. In that context, the Committee has identified services that permit the activa- tion of content available via the public internet. With such services, a person watching linear television on a smart television with an internet connection is made aware that certain content is available. That con- tent may, for example, consist of subtitling, interpretation or spoken subtitles. ’s assessment is that activation services of this type are not to be regarded as programmes in the sense of the Funda- mental on Freedom of Expression. That means that they do not fall within the scope currently provided for a “must carry” oblige- tion. Such an obligation therefore cannot be imposed. In the view of the Committee, however, the constitutional pro- visions should be platform-neutral, in the sense that it should be possible to impose a “must carry” obligation not only with respect to services corresponding in content terms to the programme con- cept of the Fundamental on Freedom of Expression, but also with respect to services which technically facilitate the user’s access to accessibility services. The Committee considers it important that constitutional provisions should not unnecessarily stand in the way of technical advances in terms of enabling people with disabilities to gain access to programme content. therefore pro- poses an amendment to the Fundamental on Freedom of Ex- pression, to the effect that a “must carry” obligation may be imposed with respect also to services that facilitate access to accessibility services. As regards other complementary services, it is not possible to predict what types of services could arise from technical advances and to what extent they may need to be retransmitted. Public service broadcasting and landline transmissions The mission of the public service companies in the service of the general public is primarily defined by conditions in their broadcast- ing licences. Those conditions include, for example, a requirement to offer a diverse range of programmes, reflecting conditions across the whole of the country; to ensure that programming as a whole is informed by educational ambitions; to provide news services in such a way that a diversity of news items, analysis and commentary finds expression; to offer a varied range of programmes for children and involving children and young people; to take the needs of people with disabilities into account; and to offer a certain proportion of programming in minority languages. The range of programmes offered must meet the requirements of objectivity and impartiality. Public service broadcasting also plays an important part in ’s total defence, a point made clear for instance by conditions relating to contingency planning. At present, these conditions only apply to public service companies’ broadcasts on the terrestrial network. For services provided by land- line, the Fundamental on Freedom of Expression does not permit corresponding conditions. A large proportion of the programming activities undertaken on the internet, for example through the com- panies’ catch-up services and apps, are to be regarded as transmissions and services provided by landline. Likewise, the Fundamental on Freedom of Expression does not permit scrutiny of content transmitted by landline. This means that a person who considers that the content of a television or radio programme provided exclusively through a public service company’s catch-up services is not objective or impartial, for instance, has no means of having a complaint investigated. In the Committee’s view, it is to be regarded as unsatisfactory that a large and, moreover, growing proportion of the public service companies’ activities fall outside the scope of the conditions under- pinning public service broadcasting. In that context, the Committee notes in particular that, under the existing regulatory framework, public funding allocated to public service broadcasting is being used for activities that are virtually unregulated. In the long run, there is danger that this could erode public confidence in public service broad- casting, which could jeopardise its legitimacy. This is a powerful argument for amending the Fundamental on Freedom of Expres- sion so as to permit conditions regarding content also to be imposed on services which the public service companies provide by landline. Such an amendment represents a limitation of the freedom of for transmissions and services provided by landline in relation to the public service companies. notes however that, in the case of public service broadcasting, freedom of is more of a departure from what has been the basis for such operations – a mission in the service of the public – than a starting point for them. In view of this, an exception to the freedom of for landline transmissions is proposed, permitting provisions to be laid down in law concerning conditions for the transmission of pro- grammes by operations run with a mission to broadcast radio or television in the public service, provided that that mission is publicly funded. To allow in a corresponding for scrutiny of public service broadcasters’ activities on the internet, an amendment to the provi- sion of the Fundamental on Freedom of Expression concerning subsequent scrutiny of content is proposed. This amendment would remove the limitation to transmissions by other means than landline. To the extent that conditions have been laid down also for landline transmissions, these transmissions can be scrutinized by the same commission that currently scrutinizes transmissions in the ether. The independence of public service broadcasting The ability of the public service companies to maintain their integrity and editorial independence, so that their activities can be carried on independently of economic and political interests in society, has been emphasised repeatedly as a basic condition for public service broadcasting. It has also been stressed that, from a civic and demo- cratic point of view, it is important that there are those who scrutinise the various spheres of power in society, public and private, corporate and voluntary. In that context, independent news services have been regarded as a cornerstone of the democratic system. In the preparatory work for the legislation regarding the new fund- ing system for public service broadcasting, the fact that the public service companies’ operations are informed by independence and a high degree of integrity is described as fundamental to this sector of broad- casting. An earlier committee, on Public Service Broadcasting, presented a number of proposals aimed at strengthening the independence of the public service companies.