{"id":14113,"date":"2025-03-20T14:54:35","date_gmt":"2025-03-20T12:54:35","guid":{"rendered":"https:\/\/www.gulliksson.se\/the-swedish-supreme-courts-decisions-protection-of-privacy-v-freedom-of-speech\/"},"modified":"2025-03-20T14:56:33","modified_gmt":"2025-03-20T12:56:33","slug":"the-swedish-supreme-courts-decisions-protection-of-privacy-v-freedom-of-speech","status":"publish","type":"post","link":"https:\/\/www.gulliksson.se\/en\/the-swedish-supreme-courts-decisions-protection-of-privacy-v-freedom-of-speech\/","title":{"rendered":"The Swedish Supreme Court\u2019s decisions: protection of privacy v. freedom of speech"},"content":{"rendered":"

[vc_row][vc_column][vc_column_text css=””]A long-standing controversial issue in Sweden has been how the country\u2019s fundamental laws on the freedom of speech (the Freedom of Press Act<\/em> [TF] and the Fundamental Law on Freedom of Expression<\/em> [YGL]) allow for the existence of privately run databases containing information on individuals and companies that have been the subject of criminal charges. However, the Swedish Supreme Court has recently issued two decisions of note on this issue, altering how the EU\u2019s General Data Protection Regulation<\/em> (GDPR) will be interpreted in relation to this area of Swedish law moving forward.<\/p>\n

To briefly outline the facts: a news agency and a company providing background checks to its customers, both also suppliers of the above-mentioned type of database, had requested access to several official documents from a Swedish court, including decisions in multiple cases concerning criminal charges.<\/p>\n

Customarily, official documents\u2014such as a court\u2019s decision in a criminal case\u2014are accessible to the public in Sweden due to the principle of public access to information.<\/p>\n

However, in these instances, the courts found that some of the information\u2014specifically the personal data\u2014contained in the requested documents was classified as secret in accordance with the secrecy provision in Chapter 21, Section 7 of the Public Access to Information and Secrecy Act<\/em> (OSL). This provision specifically states that secrecy applies to personal data if it can be assumed that, after disclosure, the data will be processed in breach of the GDPR or Sweden\u2019s Act with Supplementary Provisions to the GDPR<\/em> (ASP).<\/p>\n

Gathering large amounts of personal data from cases concerning criminal charges could, namely, violate Article 10 of the GDPR, which states that processing personal data relating to criminal convictions can only be carried out under the control of an official authority or under very limited circumstances.<\/p>\n

Nevertheless, both the news agency and the background check company appealed the courts\u2019 decisions. They argued that Chapter 21, Section 7 of the OSL should not apply to their activities\u2014i.e., journalism\u2014because journalistic work is exempt from the GDPR under Chapter 1, Section 7 of the ASP. The first part of this section states that the GDPR does not apply where it would conflict with TF or YGL. The second part states that a majority of the GDPR\u2019s provisions (Articles 5\u201330 and 35\u201350) do not apply to the processing of personal data for journalistic purposes.<\/p>\n

The above-mentioned section of the ASP represents the Swedish legislature\u2019s attempt to implement Article 85 of the GDPR, which states that member states must reconcile the right to protection of personal data in accordance with the GDPR with the right to freedom of expression and information. However, the Swedish legislature\u2019s intention to completely exempt businesses protected by Sweden\u2019s fundamental laws on freedom of speech is perhaps better described as a prioritization of freedom of speech over the right to privacy.<\/p>\n

It is precisely this approach that the Swedish Supreme Court has taken issue with. More specifically, the Supreme Court questioned whether the Swedish legislature\u2019s intention could be considered compatible with the requirements of EU law. The Supreme Court reasoned that such an interpretation\u2014where privacy rights are effectively subordinated to freedom of speech\u2014would almost entirely undermine the protection of personal data provided by the GDPR and would not adequately safeguard the rights and freedoms of data subjects. As a result, the Supreme Court upheld the lower courts\u2019 decisions to apply the secrecy provision in Chapter 21, Section 7 of the OSL to the personal data in the requested documents.<\/p>\n

Even though the Supreme Court\u2019s decision has received significant attention, it would be inaccurate to say that the Court struck while the iron was hot. A case with similar circumstances is currently pending at Attunda District Court (case no. T 3743-23), awaiting a preliminary ruling from the Court of Justice of the European Union. Furthermore, the Swedish legislature has already appointed a committee to investigate the issues raised in these cases, and the committee has in turn already presented its findings in SOU 2024:75. As the Supreme Court\u2019s decision aligns with these finding, it most likely only preepmts a legislative change on the horizon.<\/p>\n

This article was written by associate Elisabeth Hamill-Keays, together with thesis trainee Emmy Bartholdson. Please contact our team<\/a> should you have any questions regarding the Swedish Supreme Court\u2019s decision or the GDPR in general.<\/p>\n

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[vc_row][vc_column][vc_column_text css=””]A long-standing controversial issue in Sweden has been how the country\u2019s fundamental laws on the freedom of speech (the Freedom of Press Act [TF] and the Fundamental Law on Freedom of Expression [YGL]) allow for the existence of privately run databases containing information on individuals and companies that have been the subject of criminal… Read more »<\/a><\/p>\n","protected":false},"author":7,"featured_media":14089,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[157],"tags":[],"class_list":["post-14113","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-front-news-en"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.gulliksson.se\/en\/wp-json\/wp\/v2\/posts\/14113","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.gulliksson.se\/en\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.gulliksson.se\/en\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.gulliksson.se\/en\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/www.gulliksson.se\/en\/wp-json\/wp\/v2\/comments?post=14113"}],"version-history":[{"count":2,"href":"https:\/\/www.gulliksson.se\/en\/wp-json\/wp\/v2\/posts\/14113\/revisions"}],"predecessor-version":[{"id":14115,"href":"https:\/\/www.gulliksson.se\/en\/wp-json\/wp\/v2\/posts\/14113\/revisions\/14115"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.gulliksson.se\/en\/wp-json\/wp\/v2\/media\/14089"}],"wp:attachment":[{"href":"https:\/\/www.gulliksson.se\/en\/wp-json\/wp\/v2\/media?parent=14113"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.gulliksson.se\/en\/wp-json\/wp\/v2\/categories?post=14113"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.gulliksson.se\/en\/wp-json\/wp\/v2\/tags?post=14113"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}