Bloody hard to run a forum in Sweden – Lawyer speaks

Legal unrealities

(Mikael Pawlo is Associate, Advokatfirman Lindahl, working with Internet law issues for Aftonbladet Nya Medier.

In a recent ruling by the district court of Stockholm, the publisher of the Swedish daily Aftonbladet was found guilty of hate speech and sentenced to a conditional sentence and fines. An anonymous user in a moderated forum on the Aftonbladet web site uttered the hate speech.

It has been debated whether the speech was removed from the forum quickly enough or not, but that is an issue not dealt with in this case. According
to the court the crime was committed immediately upon publication.

The legal situation in Sweden regarding freedom of speech on the Internet is ambiguous. According to the laws regulating freedom of speech, the publisher has a strict accountability for everything published in his
paper. Only during extreme circumstances should the publisher escape accountability. When it comes to the Internet, the publisher of a web forum can be held accountable if he is a registered publisher and works
for a media company.

All serious media companies in Sweden have a registered publisher for their Internet editions. In the popular debate, it is often argued that the accountability of the publisher should be
different depending on whether moderation is made before or after the publication.

If the moderation is made after publication, the publisher should - according to this line of reasoning - never be held accountable for the speech published in the Internet forums. The law of freedom of expression does not deal with this particular issue, and while there are no precedents it is hard to tell with certainty what the law is. However, for commercial and ethical reasons, few serious publishers would run an
un-moderated forum. Without moderation, the forums for a major publication like Aftonbladet would contain massive amount of hate speech.

Why is this a problem? Should not the publisher be accountable for the web edition in the same fashion he is responsible for the printed edition? You
could argue that a responsible publisher should not publish irresponsible content, like hate speech. However, such an approach will carry some
negative aspects. This will inevitably lead to a situation where the free speech aspects of the Internet are not embraced.

A publisher can easily edit five pieces submitted to an editorial or opinion section in a printed edition, but he can not possibly edit 5.000 pieces submitted to the same section online. At least not if he will be held strictly accountable for everything published.

Hence, this will lead to a more restrictive policy
on what will be published on the Internet. The 5,000 pieces can not be published, since they need thorough editing. The debate among peers will die or move to other forums, not run by serious and established
publishers. From an economical viewpoint, media companies aiming at a higher standard for their forums through moderation will not be able to run open forums in the same fashion non-media companies may. This will
create asymmetries in the market place. It is a side issue, but the all companies running forums on the Internet should compete on the same terms,
notwithstanding legal technicalities.

I do not think the district court ruling was wrong in legal terms. However, I think we need to consider the legal realities of Internet publication. Maybe the law needs to be changed in order to preserve freedom of speech on the Internet.

To me it makes sense to make every user responsible for his or her speech combined with notice and takedown legislation. This will ultimately lead
to a situation where Internet anonymity can not be preserved. However, the publisher should only disclose the identity of a user in extreme cases of hate speech and other legally defined harmful content. The publisher should be held liable upon non-removal of hate speech upon notification.

Notice and takedown policies are very hard to deal with in practice. A publisher facing a notice and takedown challenge will in most cases remove
the content in question in order to escape responsibility. However, a serious publisher can distinguish between non-contentious notices and
unreasonable notices. If the media companies and their publishers are held accountable for everything published in their web forums we will soon face
an Internet where the possibility of a widened debate has been seriously damaged by law. Let us grasp the uniqueness of the Internet before it is gone. The Internet is not a newspaper. ®

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