The word “freedom of expression” is not infrequently used in connection with discussions about what Twitter and Facebook allow their users to write. This is more relevant than ever since Twitter, Instagram and Facebook chose to close Donald Trump’s accounts after what happened in Washington on the 6th of January.
How should this issue be discussed from a Swedish legal perspective? We can first and foremost state that social medias like Twitter, Instagram and Facebook are to a very great extent private actors that provide services on the Internet and there are many such actors, even in Sweden. If you as a user choose to open an account with, e.g., Facebook, you can only do so if you accept the terms and conditions established by Facebook. A service provider, both on the Internet and in real life, can choose to establish any terms and conditions, as long as they do not violate the law. If you deliver a service for a fee, you need, e.g., to comply with the provisions of the Consumer Services Act. If you engage in distance selling, the Distance and Off-Premises Contracts Act applies. Furthermore, if you sell products in a store to consumers, the Consumer Sales Act applies. But, if you deliver a free service on the Internet (we will leave the discussion regarding the fact that your information is a source of income for the service provider for now), then you are largely free to establish any terms and conditions. If you think that only cat people with red jackets should be allowed on your forum, that’s OK. If you agree to those terms and conditions, then you must also comply with them, otherwise the service provider may act in accordance with the terms and conditions of use and suspend you if these give the service provider the opportunity to do so. A contract is a contract – quite simply, both the service provider and the user have rights and obligations according to the terms and conditions of the service.
The vast majority of actors that provide space for users to write online in Sweden have terms and conditions for the service. It is common, e.g., for a service provider to say that users are not permitted to break a law if they use the service, and if they were nevertheless to do so, the service provider has the right to suspend the user. If I, as a user of an Internet service, illegally upload copyrighted material, I am breaking the law, and the person responsible for the website can thus suspend me if it follows from their terms and conditions. The foregoing also applies if you upload child pornography or incite ethnic or racial hatred. The grounds for this “suspension” are based in civil law because I promised not to act in that way in the contract I entered into with my service provider. If I breach that contract, the service provider has the right to act in a certain way.
The terms and conditions of use normally reflect the legal responsibility an actor has here in Sweden – the Electronic Bulletin Boards Responsibility Act (“BBS Act”) provides that a service provider that conveys messages on an electronic bulletin board (text, image, sound or other information), also bears a certain responsibility for what is actually posted on the bulletin board. You are required to supervise it and, if you learn of a message on this electronic bulletin board which, e.g., involves incitement (Penal Code 16, section 5), or unlawful threats (Penal Code Chapter 4, section 5), you are obliged to delete such messages.
The service provider’s terms and conditions of use thus reflect the service provider’s obligation under law – but for practical reasons it is often somewhat broader. Specifically, it is not entirely easy for a private individual to come to the conclusion on their own that someone’s photo of children swimming is a holiday picture or child pornography. Sometimes the delineation between legal and illegal is obvious, not infrequently it is a difficult matter of judgment. If the service provider’s judgment is wrong, you risk violating the BBS Act and that is exactly why the service provider’s own terms and conditions of use are often “supplementary” in nature. The service provider agree with the user that it is up to you, the service provider, to assess whether you believe that something may be illegal and that in such case you, as a service provider, have the right to, e.g., suspend a user.
But, one wonders, what does this have to do with freedom of expression? Well, the issue relates specifically to whether you as a user of a service have the right to post what you want on the service in question. Freedom of expression is fundamental, both in Sweden and in the United States, where presently the issue of whether the incumbent president is permitted to say what he wants on social media is hotly debated.
In Sweden, freedom of expression is regulated in the Fundamental Law on Freedom of Expression but can be said to be supplemented by the Freedom of the Press Act. Both are constitutional provisions in Sweden and a part of our Swedish “constitution”, by way of comparison with the United States. This is a concept that is generally considered to mean that everyone can at any time say and write anything, even if most people realize that there are exceptions.
The Fundamental Law on Freedom of Expression states that a person has the right, among other things, on radio, television, and other technical recordings, to “publicly express his or her thoughts, opinions and sentiments, and in general to communicate information on any subject whatsoever” (Fundamental Law on Freedom of Expression 1:1). The Freedom of the Press Act states that everyone has the right to express thoughts, opinions and sentiments in printed publications, as well as to publish public documents and otherwise provide information on any subject (Freedom of the Press Act Chapter 1, section 1). However, there are exceptions to these provisions. The Freedom of the Press Acts states that if you commit certain crimes in a printed publication, the act is considered a breach of the freedom of the press. Such crimes include unlawful threats, insults and libel, incitement, rebellion and high treason (Freedom of the Press Act, Chapter 7). In the Fundamental Law on Freedom of Expression reference is made to the aforementioned provision in the Freedom of the Press Act. If a person breaks the laws listed in Chapter 7 of the Freedom of the Press Act in a program or a technical recording, it is a violation of the freedom of expression.
Thus, in practice, you are not permitted to say or write anything, there are boundaries within which you must stay.
How does this relate to social media then? I omitted an essential detail above concerning the freedom of expression. Pursuant to Chapter 1, section 1, of the Fundamental Law on Freedom of Expression, the law aims to ensure freedom of expression vis-à-vis the public institutions. The entire provision reads as follows (emphasis added):
Chapter 1, section 1 of the Fundamental Law on Freedom of Expression
Every Swedish citizen is guaranteed the right under this Fundamental Law, vis-à-vis the public institutions, publicly to express his or her thoughts, opinions and sentiments, and in general to communicate information on any subject whatsoever on sound radio, television and certain similar transmissions, through public playback of material from a database, and in films, video recordings, sound recordings and other technical recordings.
Thus, social media (if private actors) has no obligation to give everyone the right to express themselves freely. Such a service provider chooses how they want to deliver the service and those who accept the terms and conditions and open an account may respectfully accept the terms for this. Or, one does not accept these terms and conditions, and then does not become a user of the service.
The Swedish State may not restrict a communication that falls under the Fundamental Law on Freedom of Expression, but a private actor actually has the right to have points of view regarding the content.
Corresponding rules can be found in the Freedom of the Press Act, where there is a prohibition on censorship (Chapter 1, section 8 of the Freedom of the Press Act), which means that a public authority or other public body may not review a publication before printing and a prohibition on printing may not occur. A public authority or other public body may only prevent, among other things, dissemination, where the content of a printed publication contravenes the Freedom of the Press Act. Thus, the Freedom of the Press Act also aims to ensure the citizen’s right to express himself or herself in writing in relation to the state, not private actors.
In their assessment, both Twitter and Facebook concluded that what Trump posted (written as well as audio and video in this case) was contrary to their terms and conditions of use. In so doing, they meant that Trump violated their terms and conditions of use, and the contractual sanction “suspension for a period” became applicable to the incumbent president. Thus, the fact that this took place is not controversial from a legal perspective.
Translated into a Swedish context, given what has been mentioned above about freedom of expression in Sweden, it must be stated that Trump may use channels other than Twitter and Facebook if what he has to say violates their terms and conditions. But there is also room to discuss whether Trump’s actions may be in violation of the law in such a way that in Sweden it would be considered a violation of freedom of expression. Thus, Twitter’s and Facebook’s terms and conditions of use give the companies the right to undertake their own assessment of whether what was said was within the boundaries of what they consider appropriate, without having to decide from a purely legal perspective whether it meant that he broke a law.
Of course, it is the case that we have two completely different laws here and different types of administration of justice – what Trump does in the US should not be judged according to Swedish law. However, the principles are in many ways the same and the discussion often occurs in Sweden as well.
If Facebook stops a Swedish post that Facebook considers to be “false content”, Facebook may do so because their own terms and conditions give them that right. This does not mean that the person who wrote the content has been deprived of their freedom of expression, it only means that the person has violated the agreement made with Facebook.
Freedom of speech is important – but it is important to not mix up things. Facebook and Twitter are private actors who are not obliged to give every human being a platform to express anything. However, the strong position of these gigantic actors entails great difficulties both ethically and morally – outside the legal system in and of itself as I have tried to highlight above, do they have any other responsibilities for what is published on their services? That discussion will continue, not least in the light of the events on Capitol Hill on 6 January 2021.
Sara Malmgren, Senior Associate at Foyen Advokatfirma