Sweden: New Act Regarding Liability for Internet Service Providers

Last Updated: 28 April 1998
A new Swedish Act regarding Responsibility for Electronic Bulletin Boards (the Act) will enter into force on May 1, 1998. In short the Act forces the provider of an electronic bulletin board to keep control over the service. Further the provider has to give the users of such services certain information and has to delete certain kinds of messages.

The Act is applicable on "electronic bulletin boards". Hereby is according to the Act meant services that include electronic distribution of messages. According to the Act "messages" means text, images, sounds and other information. Most services provided by an Internet Service providers are covered by the Act. One service mentioned in the preparatory work to the Act as covered by the Act is the providing of a web hotel for Internet homepages. Some services are however expressly excluded. The Act does not apply to the provision alone of a network or other connections for the transmission of messages. Thus, for instance the Act does not apply to a telephone company's carrier services. Further, the Act does not apply to mediation of messages within or between government agencies or within an enterprise or a legal group of enterprises. This means that the act is not applicable to Intranets. Also, the act is not applicable to messages that are intended for a certain receiver or definite group of receivers. By this provision electronic mail is excluded. An ISP shall not have any responsibility for the content of e-mail, in the same way as the Post Office does not have any responsibility for the content of an ordinary letter distributed by the Post Office.

The provider of an electronic bulletin board shall provide certain information to everyone who connects to his service. Such information shall include inter alia the identity of the provider and whether incoming messages are made available for other users of the service.

An important provision of the act is the provision (Section 3) that the provider of an electronic bulletin board has to supervise his service. The scope and aim of the operations of the provider determine the degree of supervision demanded. Some sort of a recurrent control is demanded. The Act does not provide any details on how supervision is to be carried out.

The provision on supervision of an electronic bulletin board is closely connected to a provision (Section 5) that states that the provider has to delete certain kinds of messages from his service. Thus, a provider must delete a message containing illegal information obviously constituting any of the following crimes; agitation against an ethnic group, child pornography offences, inciting rebellion, or unlawful depiction of violence. Further the provider must delete a message which by being sent to the bulletin board is obviously infringing a copyright. These rules mean that a service provider can't remain passive when the service he is providing is used by a third party for distributing messages with above mentioned contents.

A service provider that intentionally, or by negligence, does not provide information in accordance with Section 3 of the Act may be sentenced to pay a fine. If a service provider does not delete messages in accordance with Section 5 he may be sentenced to pay a fine or imprisoned for a maximum of 6 months or if the violation is gross to imprisonment for a maximum of 2 years. Further, computers and other equipment that has been used when violating the Act may be confiscated, if necessary to prevent further violations.

The Act has not yet been passed by the Swedish parliament. The Act and its effects have already been questioned in the media and by some members of parliament. One argument is that, due to the international nature of the Internet, if certain activities are outlawed in Sweden, it only means that they move to another country. The services will still be assessable for Swedish Internet users and the only effect achieved is new burdens on Swedish Internet service providers.

The content of this article is intended to provide general information on the subject matter. It is therefore not a substitute for specialist advice.

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