Internet case overturns European Data Directive

The Swedish Supreme Court overturned the European Data Protection Directive on Tuesday by ruling that a person who posted libellous material about several Swedish banks on the Internet was merely exercising his freedom of speech.

The defendant was accused of setting up a Web site, where he published serious criticisms about several Swedish banks and named individuals working at these banks, whom he accused of cheating money out of customers. But the Swedish Supreme Court rejected convictions in the lower court and appeal court, and freed the person from all charges.

The EU Data Directive has been accused of infringing the European Convention on Human Rights that guarantees the right to freedom of speech and protection of privacy. The Directive stipulates that anyone publishing information about an identifiable individual on the Internet must gain permission from that person before anything is written. But protection of privacy under the Convention is specified as including private and family life, home and personal correspondence.

The Supreme Court decided that acts taken by bank directors in their work do not fall into this category of privacy.

"The Court must have considered that the event being reported was a public act -- this doesn't mean that the decision would be the same in a case where an individual had a greater expectation of privacy," said Maury Shenk, partner at city law firm Steptoe and Johnson Rakinsons.

The Court ruling acknowledged that freedom of speech is for everyone, not only for certain professionals. It pointed to Article 9 of the Directive, which makes exemptions for the processing of personal data "carried out solely for journalistic purposes or the purpose of artistic or literary expression only if they are necessary to reconcile the right to privacy with the rules governing freedom of expression", and argued that "solely" should not be interpreted literally.

"From a journalistic perspective, freedom of speech wins over data protection principles, which is clearly the right interpretation," said Shenk. "Any alternative would be a horrible restraint on free speech."

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