Constitutionalprotectionforwebsites

17 April 2003

Heidi Ström

Like the majority of democratic states, Sweden has a written constitution. In Sweden this takes the form of four fundamental laws: the Instrument of Government, the Act of Succession, the Freedom of the Press Act and the Fundamental Law on Freedom of Expression (“FLFE”). The four fundamental laws were adopted in the late 1960s, and are constantly reformed and updated.

Adopted in 1991, the FLFE grants Swedish citizens a constitutional right to express themselves in various technological media, but does not cover printed matter. The FLFE provides citizens with a general right to communicate information on any subject whatsoever, provided that the restrictions in the FLFE are complied with. The FLFE’s “database rule” has provided constitutional protection for a number of years to databases which are made available to the public by traditional mass media organisations such as news agencies, newspaper and magazine publishers and radio broadcasters.

The FLFE refers specifically to a number of technologies including radio, television, films, video and other technical recordings. However, in order to allow the FLFE to develop with technology in the future, the FLFE was amended in January 2003. These amendments extended the scope of the database rule to cover the following new technologies:

  • Web pages and similar services, provided that the user cannot alter or add to the content of the web page – this obviously excludes message boards etc.
  • Push services (where instead of the user “pulling” the information they require from a database, the service provider “pushes” tailored compilations of information to the user according to the user’s requirements, e.g. news coverage, market updates).
  • On demand services (databases which provide a single copy of a book, video or CD on receipt of a customer order).

Under the new rules, the traditional mass media organisations are automatically granted constitutional protection for the above activities, provided that an editor is appointed and the appointment is notified to the Radio and Television Authority. However, the FLFE amendments mean that the database rule has been extended to protect not just the traditional mass media organisations which have benefited so far. Now any company or individual may claim constitutional protection for the above activities, provided they have applied for and been granted a publishing certificate from the Radio and Television Authority.

The Radio and Television Authority will grant a publishing certificate for a renewable period of ten years to any person or organisation that can fulfil the following requirements:

  • The service shall be available to the public (subscription services will be covered provided the service is publicly available).
  • The service must have a Swedish connection (e.g. intended for Swedish users).
  • Users must not be able to alter the content of the service (i.e. chat sites and message boards are not included).
  • An editor has been appointed and an editorial office established.
Constitutional protection under the FLFE means that only one person, the editor, will bear responsibility for the published information. This responsibility extends to criminal liability. If a freedom of expression offence is proved, then the editor could be fined or even imprisoned. Further amendments to the FLFE have been proposed to extend the list of related crimes, such as defamation and incitement to racial hatred.