At the center of the movie “Good Night, and Good Luck” is legendary journalist Edward R. Murrow. Murrow was one of the first reporters who started in-depth interviews on his show “Person To Person,” where he interviewed everybody from politicians to movie stars. The movie can be seen both as a historical account of McCarthyism in the United States, but also as a glimpse into the future of what is expected in Sweden with the forthcoming changes in the Fundamental Law on Freedom of Expression and the Freedom of the Press Act — both pillars of Sweden’s Basic Laws of the Realm (constitution).
By – Johan Westerholm
Murrow concluded each episode with the words “Good night, and good luck.” It was when he started going after senator Joseph McCarthy that things heated up. McCarthy was well on his way of introducing the very same type of authoritarian society that he claimed to be fighting. Suddenly, people were accused of being traitors merely based on hearsay.
Over the next few years, the Swedish government now intends to introduce three major changes to the Basic Laws of the Realm. The first proposition “Revised Fundamental Laws for the Media” (2017/18:49) has already been sent to the Riksdag (parliament) for preparation by the Committee on the Constitution. Only one party, the Sweden Democrats, has motioned against this proposal.
The proposal has been criticized, for example by Judge Katarina Rikte of the Court of Appeal for Skåne and Blekinge:
“What they do with these rules is to open up a giant black hole in the constitution. It’s not the case that you can’t publish or express anything in a media outlet covered by constitutional protection. You may publish anything, but you can be punished afterwards for certain publications. These provisions, they open up to this, they’re in violation of the ban on censorship. They entail, among other things, that it becomes possible to set conditions and determine other penalties and sanctions other than those mentioned in the Basic Laws of Sweden.
Another critic is freedom of speech expert Nils Funcke. In Swedish tabloid Expressen, Funcke writes:
“The government is draining the fundamental freedom of speech laws of their value. In a proposal to modernize the Freedom of the Press Act, three matters are moved from constitutional to regular law. The law is deliberately written in general terms in order to, as the government writes, “provide greater possibilities for adapting national regulation to, inter alia, ongoing developments in European Union law.” If the ban had been contained within the constitution, the damage to freedom of expression would have been less. But since the restriction of the availability of certain personal data is regulated in ordinary law, the Basic Laws of Sweden are laid bare for decisions made by the EU. An EU regulation to protect individual privacy is therefore applicable to Swedish media.
The constitutional revision thus allows pre-censorship through ordinary law, which can, with quick preparation, go from idea to enacted legislation in two months. Such administrative fast lanes have been prepared in both the government offices of Sweden and in Swedish parliament. In reality, the Freedom of the Press Act is circumvented with a permanent referral legislation to parliament. New restricting laws in freedom of expression and freedom of the press do not have to wait for a new election to enter into force.
The feedback from the consultation bodies is clear. The Chancellor of Justice believes that the regulation proposed for the purpose is too vague and hence unacceptable. The Faculty of Law at Lund University opposes the use of the term “race.” The Swedish Data Inspection Authority and the Swedish Post and Telecom Authority are of the opinion that the exception would also include search services with personal data information that are not in themselves of a particularly privacy-sensitive nature. Several consultation bodies, including the Court of Appeal for Skåne and Blekinge, the Swedish Broadcasting Authority, the Faculty of Law at Uppsala University, Sveriges Radio (national public radio), Sveriges Television (national public TV), the Swedish Union of Journalists and The Swedish Media Publishers’ Association reject the proposal.
The proposal is now on the Committee on the Constitution’s table for preparation. No political party has the mandate of members or voters to endorse it. Despite this, seven out of eight parties are backing these constitutional revisions.
Another change in the Basic Laws of Sweden, currently being prepared for the next term of office, is SOU 2017:70, a new law on foreign espionage. In this law, which is primarily aimed at news reporting on military or police operations impacting Sweden’s relationship with a foreign power, the government reserves the right to impose extensive coercive measures even if there is merely suspicion that a journalist intends to write an article for publication. Several elements of whistleblower protection are rescinded and the law is written in such a way that, in practice, all relationships that Sweden maintains with states or intergovernmental organizations affected by a news report are covered if it can be accommodated within the term “Peace and Security.” Without a doubt, reporting on the Swedish aid industry is included in this term. The enforcement measures that the government can use against journalists are:
- Phone surveillance
- Data surveillance
- Placing trojans inside the suspected journalist’s devices
- Placing hidden cameras in vehicles, homes and offices used by the suspected journalist
- Placing hidden microphones in vehicles, homes and offices used by the suspected journalist
These enforcement measures will be available to prosecutors and police already at the suspicion of the individual journalist working on an article that may be published. Just the suspicion will suffice. Furthermore, the report proposes that:
“The term ‘foreign association’ thus refers to a grouping that represents a conflicting interest but which does not necessarily constitute a foreign power. However, in order for the penal provisions to apply, it is required that it comprises an entity holding a position of power. However, it is not required that the grouping is organized in a certain way for it to fall within the term.”
This means that, in the case of investigating aid policy decisions, all those who have a differing opinion regarding the prevailing aid policy (which is part of Sweden’s peace and security policy) may fall under public prosecution. There are also formulations regarding expanded criminal liability:
The expansion entails that disclosures that are not sufficiently serious to be punished according to our proposals for new crimes in Chapter 19 of the Penal Code still can be criminally liable.
Compiled open data presented in editorial text may be punishable if these put Sweden in an unfavorable position in relation to a foreign power or intergovernmental organizations. The extension of this is that the dissemination of a different image of Sweden than the one desired may be rendered a criminal act if it can be proven that it impacts relations with other countries.
Although the movie “Good Night, and Good Luck” cannot be directly applied to what is happening in Sweden today, there is a parallel and something of a prophecy. Prime Minister Stefan Löfven, and perhaps most notably, his Minister for Justice, Morgan Johansson, are today preparing legislation to persecute and censor the work of journalists as soon as they investigate those in power or hold a dissenting political opinion.
In the case of Ledarsidorna.se, this would primarily be Swedish foreign aid policy and relations with the Middle East, mainly with the Muslim Brotherhood and the regime in Tehran. With the proposed legal revisions, the state’s arsenal will include extensive repressive measures or threats of such measures. Just like the witch hunt that Edward R. Murrow experienced, faced with the far-reaching coercive measures of the law and the state, as well as powerful opponents, investigative journalists will experience the full force of the Swedish government. With a monopoly on violence embodied in entities such as police, prosecutors and courts as obedient, and efficient tools.
Within just a few years, the journalists who do not agree with the government’s narrative, or who suffer from the poor judgement to embark on investigative reporting, may be in serious trouble.
How many publishers and journalists who will survive this, we do not know. A cautious assessment, however, is that the majority will adapt to the new order, some will perish, some will go quiet, some will leave journalism and a few will become dissidents. Fugitives.
Some likely to survive are major dailies Dagens Nyheter and Svenska Dagbladet, as well as public service establishments Sveriges Radio and Sveriges Television. They have received SEK 13.5 million from the Swedish government agency Vinnova in order to develop an automated news evaluation service and work against fake news. They are probably already on the right side of the border. Otherwise, they would not have received this administration’s trust.
Good Night, and Good Luck.
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Read more: From 2018/02/21