FECL 15 (May 1993):

European harmonisation of Law often tends to result in mutual adaption of national legislation on the lowest common denominator of rights and freedoms. This would not have to be so, if there was a real European information exchange and public debate about good legal traditions to be found in each country. This would be a first step towards European law-making on the highest common denominator and this is why the Swedish tradition of freedom of press deserves Europe-wide attention.
The following contribution is based on a paper written in 1989 as part of a discussion among authors in Leningrade about the new Press Law and was published in Jekaterinenburg. The author, Erik Göthe, is a Stockholm based jurist and expert on press law. He slightly abridged the original text and added a section on the implications of a Swedish EC-membership on the freedom of press.

 

THE SWEDISH TRADITION OF FREEDOM OF PRESS

by Erik Göthe

 

"I have not here concerned myself with whatever a dignitary of the state has done or wants to do, but only with the evil he is able to do, with the support of the laws, if he wants to do it. And that is not at all how the laws of a free people should be constituted."

With these words one of the fathers of the Swedish Freedom of press, Anders Nordencrantz, ended his explanation of the decisive law-technical aspect of Sweden's first law protecting the freedom of press. I think one should look upon legislation in this delicate area the way Nordencrantz did.

In 1766 this unique legislation was adopted by the Swedish parliament, a quarter of a century before the proclamation of the freedom of the press by the French revolutionaries.

The Swedish tradition of freeedom of press, with detailed rules of law specifying its character, is unique. In most countries, also where freedom of the press is an established judicial practice, it is quite often vaguely based in the legislation. That may create difficulties for the citizens to uphold the freedom when it is really needed.

The Freedom of the Press Act of 1766 was truly democratic, although Sweden at the time was really a backward, poor, economically and nationally bancrupt kingdom, with no general right to vote and no essential liberties at all for ordinary people. The kingdom was ruled by either of two political parties of aristocrats by birth, "the Hats" and "the Caps", parties which were originally founded and all along financed by France and Russia, (although Great Britain was actually paying the Russian bribes).

This may seem amazing. Looking more into historical details of the Swedish 1760s, however, one can distinguish an anti-aristocratic opposition within both parties. This opposition was backed by members of the up-coming trade bourgeoisie as well as by lower officers and other officials and by the broad masses of the people. As For the latter, one should stress that the peasants of Sweden since long played an active, sometimes combattive role in furthering their interests, also through parliament. This intricate political situation finally led to the abolishment of the system of secrecy and censorship in state affairs.

The new "Freedom of Printing Act", as it was called literally translated, since any printed matter was included in the legal protection, had the status of a constitution: amendments could be made only with two identical decisions in parliament with elections inbetween.

The new freedom was immediately used. The 1760ies saw a flood of pamphlets dealing with urgent economical and political issues and - mostly - other rather frivolous or scandalous subjects. "The rascal years of the freedom of press" this decade has been called. Those who were in favour of the new freedom apprehended it merely as a decision to put an end to censorship and to protocol secrecy in parliament. And, from the rascal point of view, freedom of printing ought to be an absolute, unlimited freedom. Under the circumstances, this was understandable, although an absolute freedom is theoretically absurd and quite soon proved fatal to the freedom itself.

The abolishment of censorship was, however, only the first and less important step. The censorship had already become helpless and awkward anyhow. The last censor of Sweden, Niklas von Oelreich, was a political weathercock who eventually had become a nuisance to the authorities by openly mocking the system and letting through pamphlets for grim humerous reasons or bribes.

In the history of Sweden the final, decisive point for the survival of the freedom of the press was formulated in 1809. This was after the violent downfall of Gustavian political reaction which was directed against freedom of printing and all sorts of influence from the french revolution. It is still in main the portal paragraph of the current Freedom of Printing Act of 1949 and it reads:

"Freedom of printing means the right of every Swedish national, without any hindrance raised beforehand by an authority or other public body, to publish any written matter, thereafter not to be prosecuted on account of the contents of such publication otherwise than before a legal court, or to be punished therefore in any case other than such where the contents are in contravention of the express terms of law, enacted in order to preserve general order without suppressing general information."

This definition contains several important elements:

It includes all citizens, irrespectively of political opinion, and it excludes hindrance prior to publishing.

This is not only an absence of censorship. It is a concrete guarantee that a book or a newspaper must be issued before the authorities take any measures.

Prosecution may take place, but only for crimes specially described in the Act itself. For a book only the author and for periodicals only the person who is formally responsible may be prosecuted. Inquiries for an author of a book who is unknown but for his pseudonyme, may not be investigated or even asked for by the authorities, not even before court. In short, the authorities shall take their hands off the editor's office. No excuse should be accepted for the control beforehand of what is going to be printed and the principle can bear no exceptions without loosing comprehension among the people and thus being hurt and lost.

Crimes can be prosecuted, though. The offences through printed expressions are listed in a special chapter of the Act and no other offences can be prosecuted.

Every prosecuted expression is judged separately by an elected jury of laymen. The procedure is biased in favour of the accused: If the expression is acquitted by the jury, the judges are not allowed to convict it, but if the jury convicts, the judges can all the same acquit.

Of course, punishment must stand in reasonable proportion to the offence. "Pilfering shall in no case be punished as rebellion," Nordencrantz said in the parliament in 1765.

The rules have not always been in accordance with his word. Also, the ruling circles in Sweden have from time to time introduced or tried to introduce amendments that undermine the principal idea of freedom of printing or even sought formally to redefine the freedom of the press. That was the case for instance in the early 19th century, under pressure from the bastion of political reaction of that time, namely tsarist Russia. That was also the case in the early 1940ies, when Germany's first demand for "total neutrality" was met by the Swedish government and parliament with an unconstitutional transportation control of antifascist newspapers and even with a formal censorship legislation.

Even today the fundamental definition of Swedish freedom of printing is far from undisputed. As late as in the 1970ies a journalist, an author and a civil servant - without formal responsibility according to the above mentioned fundamental definition - were arrested and sent to jail on account of the contents of a publication. They had revealed the existence of a secret service organisation [the "IB"] which was unknown to the parliament and even to some members of the government. Civil servants within this organisation had even committed some major crimes. A new legislation took place afterwards accordingly, making black holes in the legal guarantees of today.

Freedom of printing can not be upheld without a vigilant public opinion among the ordinary people. That is the general experience of Swedish history in this field. True freedom of the press is the right to criticise the authorities, and dignataries of the state are not, not in any type of society, at ease with criticism. For that simple reason it is wise to postulate that they are constantly tempted to undermine the freedom of the press. A good press law should be written accordingly, with clearcut principles, understandable to all. One must bear in mind that a press law remains an artificial construction, which must be at hand when needed but which falls apart if left to persons in power.

As I see it, creating public opinion through the printed words on paper is not obsolete, in spite of new powerful media. In the Western world, printing your own material is becoming increasingly cheap and handy with modern technique. It can be the property of every citizen, which talking on television never can. Once the freedom of printing is well guaranteed and practiced, all the other rights and liberties can easily be defended or regained.

What will remain of this tradition after Sweden's planned entry into the European Union?

In the wake of the Swedish application for EC membership, a wide debate in the Swedish press lately has questioned the government's tacit acceptance of EC standards of secrecy in state affairs, fearing Sweden will have no "opt out" in favour of its traditions. In professional law publications, though, authors have made no mention of any such opt out possibilities.

To my knowledge, also various principles related to the Swedish freedom of the press are obviously in the risk zone, since the Maastricht Treaty widely opens the scope of EC-legislation to practically all political sectors:

 

Contact: Erik Göthe, Svartmangatan 27, S - 111 29 Stcokholm, Tel: +46/8 246 004, Fax: +46/8 112 590.