The Swedish Supreme Court has issued two significant decisions on the public disclosure of criminal judgments, emphasizing the precedence of the GDPR over Sweden’s constitutional laws relating to public access to information.
Click here to read the court decisions (in Swedish only).
Background
The first case involved a news agency that requested a large number of criminal judgments and related documents from the lower court. While the lower court granted access, it imposed conditions restricting how the agency could use the information, citing GDPR and case law from the EU Court of Justice. The Supreme Court upheld these restrictions but modified them slightly in such way that:
(i) the documents, regardless of their format, must not be made available to the public or customers if doing so would disclose the names, personal identity numbers, or addresses of individuals, and
(ii) personal data may still be used in news articles and reports produced by the news agency, but it cannot be compiled into a searchable database accessible to the public or customers.
The second case involved a company that offers background check services while also engaging in some journalistic activities. The ruling in this case was essentially the same as that of the news agency.
Relationship between Swedish constitutional law and EU law
On the critical issue of how Swedish constitutional law interacts with EU law, the court determined that Sweden’s approach to disclosing criminal judgments conflicts with EU law. According to the court, allowing widespread access to such judgments on the basis of Swedish constitutional laws would lead to large-scale processing of personal data relating to criminal convictions and offences (e.g. by making such personal data publicly available and searchable in databases). The court argued that such a system would undermine the data protections enshrined under GDPR, as the only remaining safeguards would be pursuant to national law that were considered insufficient for this purpose.
As a result, the court concluded that Sweden’s current legal framework on freedom of information and press freedom is not compatible with GPDR in the way the national lawmaker had originally intended.
Potential impact
The decisions could significantly impact the ability of background check service providers and companies that provide databases on criminal judgments to continue their business.
