In Sweden, a recent ruling by the Supreme Administrative Court (Sw. Regeringsrätten (“RR”)) relaxes the rules on the use and handling of credit information on the internet. In this context the recent amendments to the Fundamental Law on Freedom of Expression (Sw. Yttrandefrihetsgrundlagen (“YGL”)) should also be considered (see “Constitutional Protection for Web Sites” in the last issue of the IT & E-Commerce Law Bulletin, Easter 2003).
Under the rules of the Swedish Credit Information Act (Sw. Kreditupplysningslagen (“KUL”)) anyone requesting a credit report on an individual must have justification to do so, and the person concerned must receive a notification of the request, a so-called “end-user notification”. KUL explicitly sets out that these rules do not apply if YGL is applicable.
The YGL confers the same constitutional protection to radio programmes and electronic media as does the Freedom of the Press Act (Sw. Tryckfrihetsförordningen) to written and printed material. Under the so-called “database rule”, constitutional protection has, for a number of years, been granted for databases made available to the public by traditional mass media companies such as news agencies, radio broadcasting companies etc. In order to make YGL more technology neutral, amendments to the law came into force on 1 January 2003. These extend the scope of the database rule to cover (i) web pages and similar services, (ii) push services and (iii) on-demand services. Further, the database rule from now on also covers “others” besides traditional mass media companies. Therefore, any company or individual may now be granted constitutional protection under Swedish law for the abovementioned services, provided that it has established an editorial office and appointed an editor.
The recent Supreme Administrative Court ruling concerned the publication of credit information on the web site of Swedish credit-rating agency AB Svensk Upplysningstjänst. This agency publishes a printed periodical, “Kreditrapporten”, which contains information on court actions for non-payment of debts. Upplysningstjänst further administers the web site “Arkivet” where the subscribers of Kreditrapporten may access material published in Kreditrapporten during the previous three year period. In 2001, the supervisory authority for the handling of personal data and credit information, the Data Inspection Board (Sw. Datainspektionen (“DI”)), prohibited Upplysningstjänst from providing Arkivet, stating that the activity was not in compliance with the rules of KUL. Upplysningstjänst contested the prohibition in the administrative court with reference to YGL’s database rule. DI claimed that Upplysningstjänst does not have the kind of editorial staff described by the database rule since it is not a traditional mass media company and thus that the database rule did not apply.
The court did not agree with DI. RR, following a review of the drafting process of YGL and concluded that in the absence of any clear definition, the term “editorial staff” should be interpreted as having the meaning most consistent with normal language. The concept “editorial staff” therefore includes any personnel handling the editing and publication of printed texts, regardless of the quality of the text. Accordingly, the individuals who edited and published Upplysningstjänst’s periodical constituted “editorial staff” under YGL. The web service offered by Upplysningstjänst was therefore covered by the database rule and did not have to comply with KUL’s rules concerning justifiable reasons or end-user notification.
The amendments to YGL extend the scope of the database rule as it now applies to all companies and persons, which at least in a literal sense have an “editorial staff”, and not just to traditional mass media companies. The effect of these amendments is that credit-rating agencies can now quite easily evade some of the strict rules on the handling of credit information set out in the Credit Information Act. In Sweden, the question has been raised whether these consequences were not foreseen by the legislator and thus whether the above relief for credit-rating agencies are in fact an unintended loophole. In this context it is interesting to note that the Supreme Administrative Court did not touch upon the essence of the new rules of YGL in its ruling.