A Plea for Proportionality

In recent months the burning of the Koran in Sweden has caused headlines and severe anger in many parts of the Muslim world as well as bewilderment in most of the EU as to why Sweden continues to permit the practice. The Government is currently looking into how the law can be changed to include a ban on the burning of the Koran in the Public Order Act. In this blog post, I explain why it might be wise to do so and how this might be done. In particular, I argue that existing provisions within Swedish law permit a limitation of freedom of expression for security reasons or to avoid hate speech, and that it can be construed sufficiently narrowly by focusing on book burnings that occur in public. Moreover, I will suggest that the somewhat extreme position taken by Swedish courts when it comes to freedom of expression is at odds with their reluctance to defend individual rights in other contexts.

Freedom of Expression: An Unlimited Right?

There has recently been a surge of actors (predominantly far right activists) who have applied for permission to burn the Koran as a form of demonstration. The Swedish police has sought to limit permissions several times to burn holy books, claiming security threats. However, the national courts have consistently overturned their decisions, construing freedom of expression as an absolute right. This ignores that Swedish law permits limits on freedom of expression, including for reasons of national security (Swedish Basic law Chapter 2 Regeringsformen and the Public Order Act, Chapter 2:10). However, national courts construed the security exception in the Public Order Act to be concerned with the demonstration itself (i.e. the security at the actual act of burning), not the security threats resulting from the Koran burnings.  Yet, this reading of the security limitation made by the courts is arguably unduly narrow.

Thus, it seems that people applying for permission to demonstrate by burning the Koran have not been Swedish citizens but as it seems have traveled to Sweden to burn the Koran. The Government has pointed at evidence confirming that Russia and other actors are involved in some of the Koran burnings and in spreading a negative picture of Sweden on social media, possibly to sabotage its pending NATO application. Indeed, the Turkish President Erdogan has postponed the ratification of the NATO application, among other reasons, because of the burnings of the Koran. While freedom of expression might include a right to burn the Koran, it is less clear whether this right should be extended to foreign actors.

Irrespective of these security related concerns, there is a second question of whether the burning of the Koran might classify as a hate crime under Swedish law. Sweden has criminalized hate crimes in the penal code (Chapter 16:8 Brottsbalken) and this includes hate speech i.e. publicly expressed hatred. The burning of the Koran can be taken to meet this definition, depending on the place where it takes place and the level of provocation. For example, burning something in your own home or burning it in an industrial complex without anyone there may not be considered a hate crime. In line with this, it has recently been suggested that implementing a ban on burning books in public spaces might solve the problem. This would mirror the limited right to use fire in public spaces that exists under Swedish law.

While freedom of expression is a cornerstone of a democratic state, it can and should be limited where it is both necessary and proportionate to do so. Of course, there are challenges with restrictions as they could be used in an overly broad way. However, not applying any of the restrictions that are permissible under the law is both naïve and disproportionate.

The Evisceration of the Right to Privacy: A Comparison  

The overriding importance the Swedish courts afford freedom of expression stands in sharp contrast to their reluctance to attach any significance to the right to privacy, and the underlying dignity of the individual, when it comes to personal data available online. In particular, Swedish law currently permits companies to buy personal data from the state and sell it online. This violates the EU Charter Article 8 and the GDPR as well as the right to dignity and privacy in the Swedish Constitution Ch 1:2 and Ch 2: 2 and 19. Yet, the practice has remained legal due to a quirk in the Swedish system that permits the purchase of a so-called voluntary publishing licences, even if you are not a newspaper. These licenses allow companies to download personal data from tax authorities including, inter alia, everybody’s date of birth, home addresses, relocation history, car ownership with information of the registration plate, civil status, names of co-habitants, and so on. The latter may also reveal an individual’s sexual orientation. This personal data is re-published on various websites and is either used for making advertisement revenues or sold to third parties in some cases.  The only way to be excluded from the online databases is to apply for hidden identity which is only granted if you can show there have been threats against you (e.g., a judgment or a police investigation). Otherwise, people are left at the mercy of the websites who may or may not agree to delete personal data.

The state uses the exception for journalism in the GDPR, but the selling of personal data to companies who then profit from selling it to third parties is not about freedom of expression, but a “freedom” to abuse access to private data. Recently, in a case against one of the major websites who sells personal data (Mr Koll) and refused to delete it, the lower instances refused to ask the EU Court of Justice or to otherwise to engage with the compatibility of the Swedish system with EU law on data protection. The Supreme Court sent the case back to the Court of Appeal for a new trial which should include the EU law dimension. While most people were hoping that finally a Swedish Court would ask the EU Court of Justice about the compatibility of Sweden’s extremely broad exception to the GDPR which goes much further than protecting journalism, the company in question who refuses to delete information (Mr Koll) brokered a deal with the claimant outside court.

Sweden’s Inconsistent Protection of Individual Rights

When contrasted with the current approach to freedom of expression in the context of Koran burning, there appears to be a senseless discrepancy in the legal system when it comes to the rights of the individual. Why is it that in some areas even when it amounts to a hate crime or a real security threat the individual has (in practice) an unlimited right to burn the Koran, while in other areas the rights of the individual (privacy, data protection and even dignity) are totally disregarded? At the very least, the state ought to provide a justification. In the case of privacy and data protection, there must also be a serious engagement with how the Swedish law can be justified in light of the far-reaching EU law on data protection which takes precedence over national law.

It is currently the case that the law over-protects an individual right in one context, even where the right is abused by provocateurs to express hatred or might justifiably be limited by countervailing state interests. Meanwhile, in a different context, the individual right to be protected against commercial monetization of private information, which even leads to victimization by criminal organizations, is totally disregarded. While rights are not always treated the same by Courts, the current Swedish situation has led to two extreme approaches to individual rights protection, without offering a compelling justification for this discrepancy in the legal system. It is as if the courts lack a comprehensive jurisprudence of individual rights to begin with, because there is no use of proportionality.

What is needed is thus a revision and discussion of the legal framework when it comes to freedom of expression and individual rights more broadly, with the goal of creating a more consistent approach to the protection of individual rights across the full spectrum of rights. Freedom of expression is a cornerstone in a democratic state but to limit its exercise due to security or hate crime concerns are not inherently disproportionate. Likewise, data protection, privacy and dignity are constitutional rights under both EU law and Swedish law which are currently infringed upon in a disproportionate manner due to current, irresponsible practices regarding the handling and monetization of information. The current co-existence of these two extremes within Sweden’s approach to protecting individual rights lacks any coherent explanation at the moment.

Moreover, an overly autonomy-focused approach that misses out on a duty of respect to others and fails to balance other interests and apply a proportionality test is not the right way to go. The law already permits limitations of rights, giving the courts the tools needed to restrict freedom of expression when necessary. With regard to the private data, however, the law on publishing license needs to be changed so it does not allow for companies to misuse it in contradiction to prevailing EU law on data protection, privacy and dignity of the individual as well as Swedish constitutional law.