Revenge Porn : An analysis in the context of the European Convention on Human Rights and of Sweden’s compliance with its obligations under the Convention

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J U R I D I C U M

Revenge Porn

- An analysis in the context of the European Convention on Human Rights and

of Sweden’s compliance with its obligations under the Convention

Nathalie Holvik Spring 2016

RV600G Rättsvetenskaplig kandidatkurs med examensarbete (C-uppsats), 15 högskolepoäng Examiner: Anna Gustavsson

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SUMMARY

This is a study of the concept of revenge porn in the light of the European Convention on Human Rights, and an evaluation of Sweden’s compliance with its obligations under the Convention. The paper aspires to determine if the subject in question fall within the remits of Article 8 of the Convention, and if it comprises a protection against the characteristics of the phenomenon. The act of revenge porn can contain numerous components, but in this analysis the focus has been placed on non-consensual photography and filming, and the distribution of intimate or sexually explicit material.

These issues fall under the scope of Article 8 of the Convention, and may under certain circumstances give rise to positive duties, which obliges contracting states to protect individuals against such instances. However, such protection constitutes an interference with Article 10 of the Convention whereas the conflicting values at stake must be weighed against each other in order to attain a fair balance. An assessment of Article 8 in the context of the aspects related to revenge porn has been used to analyse the legal situation surrounding the subject and the extent of the provisions protective sphere.

The study also contains an examination of how the focal areas of this study have been treated within the Swedish legal system. The criminal provisions that have been used to combat these issues are defamation, molestation, sexual molestation, and intrusive photography. Swedish case law and a public investigation indicates that the regulations in question are inconclusive in the light of the standard of protection that is set out in the Convention.

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LIST OF ABBREVIATIONS

ECHR European Convention for the Protection of Human Rights and Fundamental Freedoms

ECtHR European Court of Human Rights

The Convention European Convention for the Protection of Human Rights and Fundamental Freedoms

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TABLE OF CONTENTS

1. INTRODUCTION.………...1 1.1 Background.………...1-2 1.2 Purpose.……….3 1.3 Delimitations………..3-4 1.4 Method………..4 1.5 Disposition……….4-5

2. DEFINITION OF REVENGE PORN………...……….5 3. REVENGE PORN IN THE CONTEXT OF ARTICLE 8 ECHR.………..5

3.1 Article 8 in general………5-7

3.2 Stage 1 – applicability of Article 8.………..7

3.2.1 Private life, family life, home and correspondence.……….7

3.2.2 Private life.………...7-9

3.2.3 Family life, home and correspondence………9-10

3.2.4 Summary………...10

3.3 Stage 2 – interferences with Article………10

3.3.1 Negative and positive obligations………..10-11

3.3.2 Positive obligations and the balancing of interests………11-14

3.3.3 Summary……….14

4. REVENGE PRON IN THE CONTEXT OF SWEDISH LEGISLATION.…………...14

4.1 Swedish legislation and case law……….………..14-15

4.1.1 Defamation……….15-17

4.1.2 Molestation………17-18

4.1.3 Sexual molestation……….18-20

4.1.4 Intrusive photography………20-22

4.1.5 Summary..………...22

4.2 Compliance with Article 8 of the ECHR………...22-25

4.2.1 Summary………25-26

5. CONCLUSION.…………...26-27 6. LIST OF AUTHORITIES.………...28-32

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1. INTRODUCTION

1.1 Background

The Internet has revolutionised the modern world, and has brought about endless means of communication as well as tools to spread information, regardless of geographic borders,1 and it has been of vital importance for commerce, as well as for governments and individuals since the 1990s.2 However, the rampage of the Internet has not been entirely positive since it also has allowed for cyber-related crimes to thrive.3 In an atmosphere of anonymity, the lack of centralised governance, and with an incalculable range, such crimes can cause severe harm to victims all over the world.4

Cybercrimes can be divided into two main categories, namely advanced cybercrime and cyber-enabled crime. The former encompasses high tech crimes afflicting mainly hardware and software through complex attacks, whereas the latter classification focuses on traditional crimes that have been introduced to a new forum through the advancement of the Internet.5 Through a veil of anonymity, perpetrators are virtually able to roam free and to spread defamatory information, hatred, and to threaten people.6 Many of these traditional crimes have been allowed to take new forms through the platforms provided for by the Internet, and new trends emerge constantly.7 Several of these current trends involve gross interferences with personal integrity. An example of such a crime is revenge porn.8

Revenge porn is a widespread phenomenon, which mostly affects women and young girls. The consequences for victims can be immensely harmful, and the issue often involves the Internet and social media, which contribute to its complex structure.9 A thorough definition what constitutes revenge porn will be provided for under section 2 of this study, but it can briefly be described as a non-consensual distribution of intimate or sexually explicit photos or videos.10

People whom have been subjected to revenge porn witness of having had their lives shattered. Some have lost their jobs and studies show that victims have an increased risk of being exposed to stalking and sexual harassment.11 Being a victim of revenge porn can also seriously damage one’s physiological health, and some victims have even taken their lives                                                                                                                

1 Barry M Leiner, ‘Brief History of the Internet’ (Internet Society)

<http://www.internetsociety.org/internet/what-internet/history-internet/brief-history-internet> accessed 14 April 2016.

2 Michael J Woodrow, Cyber Security 2.0 & the history of the Internet (Lulu.com 2014) 30.

3 Interpol ‘Cybercrime’ (18 May 2016) <http://www.interpol.int/Crime-areas/Cybercrime/Cybercrime> accessed 18 May 2016.

4 ibid; Woodrow (n 2). 5 Interpol (n 3).

6 SOU 2016:7 Integritet och Straffskydd, 112. 7 Interpol (n 3).

8 SOU 2016:7 (n 6) 134-141.

9 Danielle K Citron and Mary A Franks, ‘Criminalizing Revenge Porn’ (2014) 49 Wake Forest Law Review 345, 347-348.

10 For examples of definitions in literature and dictionaries see: ibid 346; Oxford Dictionaries ‘Definition of revenge porn in English’ <http://www.oxforddictionaries.com/definition/english/revenge-porn> accessed 18 May 2016; Per-Anders Jande and Anders Svensson, ‘Dags att embrejsa årets nyord!’ Språktidningen

(Stockholm, January 2013) http://spraktidningen.se/artiklar/2013/12/dags-att-embrejsa-arets-nyord accessed 18 May 2016.

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after discovering that nude or sexually explicit material of them had been posted on the Internet.12

The serious consequences of revenge porn are starting to be recognised and Israel, Japan, Canada and the United Kingdom are countries that have adopted legislation, which explicitly bans the distribution of revenge porn.13 Big corporations such as Google, Microsoft and the social media site Twitter have also responded to the issue by adopting rules and guidelines concerning subject.14 This is definitely a step in the right direction, but the powers of Microsoft and Google are limited and only extend to the possibility of removing search results and not the content itself.15 Twitter on the other hand, can remove such contents from its servers,16 but neither of these mechanisms can prevent the victim from being harmed since the material has already been available worldwide, and there is no way of knowing if, or how many times it has been downloaded.17 Therefore, the magnitude of the damage suffered by victims is almost exclusively incalculable, whereby revenge porn constitutes a severe threat to personal integrity

In regards of violations of personal integrity, the European Convention for the Protection of Human Rights and Fundamental Freedoms18 (ECHR, the Convention) provides a broad protection, and even though the European Court of Human Rights (ECtHR) has not dealt with revenge porn per se, there is case law on issues that contain similar aspects.19 Conversely, it raises the question whether the protection against revenge porn could constitute a human right under the Convention. In the case of Söderman v. Sweden20, the ECtHR recalled that respondent state’s legislation, as it stood at the time, was not sufficient enough to protect individuals from covert filming. Sweden has altered its legislation since this judgment, and adopted a law that inter alia regulates such filming.21 Consequently, this indicates that there could be some sort of protection in regards of revenge porn inherent in the Convention. How far this protection extends will be examined in this study, as well as if Sweden lives up to its obligations regarding the issue.

                                                                                                               

12 SOU 2016:7 (n 6) 140.

13 Juan C Rodriguez, ‘Israel Criminalizes ’Revenge Porn’ in New Bill (Law 360)

<http://www.law360.com/articles/499212/israel-criminalizes-revenge-porn-in-new-bill> accessed 16 April 2016; Shigenori Matsui, ‘The Criminalization of Revenge Porn in Japan’ (2015) 24 WILJ 289, 291; Justice Laws Website ‘Protecting Canadians from Online Crime’ (16 May 2016)

<http://laws-lois.justice.gc.ca/eng/annualstatutes/2014_31/> accessed 18 May 2016; Lizzie Dearden, ‘Revenge porn illegal in England and Wales under new law bringing two-year prison terms’ Independent (London, 13 April 2015) <http://www.independent.co.uk/news/uk/home-news/revenge-porn-illegal-in-england-and-wales-under-new-law-bringing-in-two-year-prison-terms-10173524.html> accessed 18 May 2016.

14 Google ‘Remove ”Revenge porn” from Google’

<https://support.google.com/websearch/answer/6302812?hl=en> accessed 18 May 2016; Twitter Inc ‘Twitters regler’ <https://support.twitter.com/articles/20170465> accessed 18 May 2016; Twitter Inc ‘Private information posted on Twitter’ <https://support.twitter.com/articles/20169991> accessed 18 May 2016; Microsoft

Corporation ‘‘Revenge porn:’’Putting victims back in control’

<http://blogs.microsoft.com/on-the-issues/2015/07/22/revenge-porn-putting-victims-back-in-control/#sm.00001ehrbi6zlzeotqp6hiq77j380> accessed 18 May 2016.

15 Google (n 14); Microsoft (n14).

16 Twitter Inc ‘Twitters regler’ (n 14); Twitter Inc ‘Private information posted on Twitter’ (n 14). 17 Citron and Franks (n 9) 350.

18 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) CETS no: 005 (European Convention on Human Rights, ECHR).

19 See e.g. Von Hannover v. Germany, no. 59320/00, ECHR 2004-VI for non-consensual distribution of personal information and Reklos and Davourlis v. Greece, no. 1234/05, 15 January 2009 for non-consensual photography. 20 Söderman v. Sweden, no. 5786/08, 12 November 2013.

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1.2 Purpose

The purpose of this study is to examine the legal aspects that may come into play in cases related to revenge porn, and how these are regulated in the ECHR. Focus will be placed on personal integrity, and if the prevention of the subject matter could give rise to a positive obligation under Article 8 of the Convention. Moreover, an assessment of how revenge porn is regulated within the Swedish legal system will be provided, as well as a discussion on Sweden’s compliance with its duties under the ECHR.

In order to fulfil the purpose of the study, the following questions will be answered: 1. What is the definition of revenge porn?

2. Does revenge porn fall under the ambit of Article 8 of the ECHR? 3. How is the phenomenon regulated within the Swedish legal system? 4. Does Sweden meet its obligations under the ECHR?

1.3 Delimitations

The main focus of this paper is to analyse the legal aspects of revenge porn in the light of the ECHR, and to ascertain if the rights contained therein could provide protection against the act in question. These aspects mainly revolve around covert and non-consensual photography and filming of an intimate nature, and the distribution of such material. Since the subject matter is closely tied to aspects of personal integrity, Article 8 will be featured at the centre of this analysis. The reason for this is that other provisions that protect personal integrity, such as Article 2 and 3 of the convention, mostly deal with cases in which physical or sexual violence have occurred,22 whereas this study mainly focuses on psychological facets. Since the ECtHR has established that the interests contained in Article 8 and Article 10 can collide in some cases,23 Freedom of expression will also be discussed, but only as far as it is relevant for the main focal point of the study.

The part concerning the legal situation in Sweden will focus on how the aspects of concept are regulated within legislation and how the domestic courts have dealt with the issue. The provisions that will be examined in relation to this are defamation, molestation, sexual molestation, and intrusive photography.24 In order to provide a more in depth analysis, emphasis will be placed on jurisprudence, which reflects the interpretation of these provisions in the light of the main issue. Consequently, less attention will be paid to their general application. Furthermore, the Swedish constitutional laws will only be succinctly referred to as the distribution of revenge porn-related material mostly occurs in mediums, which are not safeguarded by these regulations.25 In addition, Swedish tort law will only be briefly touched                                                                                                                

22 See for e.g. the reasoning in cases Söderman v. Sweden (n 20) para 80; Osman v. the United Kingdom, 28 October 1998, Reports of Judgments and Decisions 1998-VIII paras 128-130; Bevacqua and S. v. Bulgaria, no. 71127/0, 12 June 2008 para 65; Sandra Janković v. Croatia, no. 38478/05, 5 March 2009 para 45; X and Y v. the

Netherlands, 26 March 1985, Series A no. 91 para 27; M.C. v. Bulgaria, no. 39272/98, ECHR 2003-XII para

150.

23 See e.g Hans Danelius, Mänskliga rättigheter i europeisk praxis: En kommentar till Europakonventionen om

de mänskliga rättigheterna (5th edn, Nordstedts Juridik 2015) 574-577 and the reasoning in case Von Hannover v. Germany (n 19) paras 57-58.

24 The Swedish Penal Code (n 21) chap 5 art 1, chap 4 art 7, chap 6 art 10, chap 4 art 6a. 25 SOU 2016:7 (n 6) 280.

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upon since, in this context, its provisions are mainly applicable in conjunction with a criminal offense, and are therefore incapable of remedying violations of integrity on their own.26 It is worth noting that some cases will be more thoroughly examined than others, this is partly due to their relevance for the subject, but also because delimitations had to be made due to the space limit of the paper.

Revenge porn is predominantly committed by individuals, and for personal reasons,27 which is why aspects related to the treatment of personal data for non-private usage lack relevance for this analysis.

Child pornography cases may contain similar aspects as revenge porn,28 but the issue is not going to be discussed within this paper since it contains additional aspects, which are not relevant for the specific purpose of this study.

Moreover, in order to avoid departing from the main aim of the study, procedural aspects such as jurisdictional issues, along with the responsibility of websites hosting illicit material, will be excluded from the discussion. Furthermore, the examination will not contain any other international instruments than the ECHR, since such provisions lay outside the scope of the subject matter in question.

1.4 Method

For the purpose of conducting a de lege lata analysis of how the concept of revenge porn relates to the obligations in the ECHR, the legal dogmatic method has been used. The study also contains a discussion on how the subject has been treated within the Swedish legal system as well as an evaluation of Sweden’s compliance with its duties under the Convention. Since revenge porn is a relatively new phenomenon there is no extensive legal doctrine on this particular subject whereas the main source of law that has been used is jurisprudence from the ECtHR and domestic case law from Swedish courts, which demonstrates how the subject has been treated in practice.

Additional legal sources that have been used are the ECHR, national legislation, preparatory works, and to a certain extent legal doctrine.

Moreover, as a result of lingual differences, the translations used in regards of Swedish legal provisions may vary slightly from their original meanings. In order to remedy this, they have been complemented with explanations of how they should be interpreted as well as how they have been applied in practice.

1.5 Disposition

Chapter 2 commences with a discussion of the definition of revenge porn. This is in order to provide the reader with information on what the concept entails in the light of this paper.                                                                                                                

26 Alexandra Sackemark and others, Näthat: Rättigheter och Möjligheter (2nd edn, Karnov Group 2015) 40-42. 27 Citron and Franks (n 9) 351-352.

28 See e.g Svea Hovrätts dom 4 september 2014 i mål B 7080-14 in which the defendant was convicted to the offense of child pornography for possessing photos and films with a child pornographic content.

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Chapter 3 revolves around the general character of Article 8, as well as a discussion on how the ECtHR determines its applicability. Furthermore, the elements of revenge porn are examined in the context of the Convention.

Chapter 4 provides an overview of the Swedish legislation, which has been used in cases dealing with issues related to revenge porn. Case law is used to demonstrate how the subject has been treated in practice. The latter part of the chapter contains an analysis of Sweden’s compliance with the obligations set out in the Convention.

Chapter 5 comprises a summarising conclusion on the subject as a whole.

2. DEFINITION OF REVENGE PORN

There is no universal definition of revenge porn that has been formally accepted, but the characterisations used in for example literature and dictionaries are generally the same. In a broad sense, the phenomenon is typically described as the non-consensual sharing of sexually explicit photos or videos, with the aim of humiliate and intimidate the subject in question.29 Although, some definitions require that the material must have been shared on the Internet in order to amount to revenge porn,30 whereas others states that the act must have been performed by an ex-partner.31 However, most characterisations tend to acknowledge that it constitutes revenge porn regardless of whether the victim had agreed to being filmed or photographed or not. Instead focus is placed on the non-consensual sharing of the material.32 Diane Keats Citron and Mary Anne Franks state in their article Criminalising Revenge Porn, that consent in general is considered context-specific,33 and that consenting to being recorded or photographed is not the same as consenting to the material being shared with third parties. This is indisputably true, but this study will only focus on material that has been acquired non-consensually or covertly. The effects of revenge porn ought to remain the same regardless of whether the victim had knowledge of, or had consented to the material being acquired, but it alters the legal aspects of the subject. Therefore, and in order to allow a more in depth analysis of the subject from this angle, the definition of revenge porn that will be used throughout the paper is the act of sharing intimate material that has been obtained without the subject’s knowledge or consent.

3. REVENGE PORN IN THE CONTEXT OF ARTICLE 8 ECHR

3.1 Article 8 in general

Article 8 reads as follows:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

                                                                                                               

29  See e.g. Citron and A Franks (n 9) 346; Oxford Dictionaries (n 10); Jande and Svensson (n 10). 30  Oxford Dictionaries (n 10).    

31  Jande and Svensson (n 10).  

32 See e.g. Citron and Franks (n 9) 346; Oxford Dictionaries (n 10); Jande and Svensson (n 10). 33 Citron and Franks (n 9) 348.

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2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”34

Complaints, which are filed under Article 8, are typically decided in accordance with a two stage-test. The first stage revolves around the applicability of the Article, and will also involve an examination of the complaint in the light of private life, family life, home or correspondence.35 If the ECtHR finds that issue falls under the Article’s scope of application it will move on to the next stage of the test. The second stage of the test differs depending on whether the invoked right is a negative or a positive obligation. If a state itself has interfered with one of the rights contained in the Article, the ECtHR will try whether the interference can be justified with reference to the exceptions set out in the second paragraph of Article 8.36 If a private entity has interfered with the rights of an individual, Article 8 may in certain situations give rise to a positive obligation.37 Such obligations can require states to take legislative or other appropriate measures in order to ensure the protection of the rights within the Article,38 In practice, this means that a state can act in violation of Article 8 by tolerating a situation which is contrary to the rights contained therein.39

The relation between negative and positive obligations is, however, somewhat complex and there is no clear-cut boundary as to where one begins and the other one ends. The principles, which are used to determine if a violation has taken place, are, nonetheless very similar. When assessing the applicability of negative or positive obligations, the ECtHR will examine if a fair balance of interests have been struck. In cases where an individual’s private life has been interfered with, that person’s interests must be balanced with the right to freedom of expression.40 However, the conditions in contracting states can be vastly different, and as a result of that, the term ‘respect’ has not gained a precise definition.41 Consequently, parties to the Convention have a wide margin of appreciation when determining what measures that should be considered compatible with Article 8.42 This is based on the notion that the ECtHR is subsidiary in relation to domestic courts, and that a contracting state in principle is in a better state to determine how to secure the Convention rights’.43 Nevertheless, the breadth of the margin of appreciation varies from case to case, and certain areas of law provide a wider span than others.44

As mentioned in previous paragraphs, the ECtHR has not explicitly dealt with the subject matter that constitutes revenge porn. Therefore, and in order to answer the question of whether its prevention falls under the ambit of Article 8 in the ECHR or not, the subject must be examined in accordance with the two-stage test, and previous case law that has treated                                                                                                                

34ECHR (n 18) art 8.

35 Ursula Kilkelly, The right to respect for private and family life: A guide to the implementation of Article 8 of

the European Convention on Human Rights (Human rights handbooks no. 1, Council of Europe 2003) 8.

36 ibid 8-9.

37 Kroon and Others v. the Netherlands, 27 October 1994, Series A no. 297-C para 31. 38 SOU 2016:7 (n 6) 82.

39 Danelius (n 23) 365.

40 Von Hannover v. Germany (n 19) paras 57-58. 41 Kilkelly (n 35) 21.

42 ibid 6.

43 Von Hannover v. Germany (n 19) paras 107-108.

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similar matters. Within the rulings of the ECtHR, these stages are most often closely intertwined,45 but for the purpose of clarity the two stages will be studied separately. Hence, the first section will mainly deal with the scope of application, whereas adjoining section will contain a discussion about potential state obligations in regards of revenge porn. However, because of the close connection of the two stages, there will inevitably be some overlap between the mentioned areas.

3.2 Stage 1 - applicability of Article 8

3.2.1 Private life, family life, home and correspondence

As discussed above, the first step of the two-stage test is to determine whether the subject matter of a case fall within the remits of Article 8.46 Decisions derived from the application of the Article in question are fact sensitive, and as there is no clear-cut definition of either of the four dimensions, or elements in the first paragraph, one must turn to the ECtHR’s case-law for an indication of which situations that fall within the scope of their application.47 Each individual case of revenge porn can undoubtedly contain various aspects, but since the main focus of this study is the non-consensual distribution of intimate or sexually explicit photos or videos, emphasis will be placed on these aspects whilst examining the applicability of Article 8. For this purpose the element of private life will be discussed thoroughly, whereas a succinct analysis of the other elements will be used to describe potential overlaps that may occur in situations dealing with the issue at hand.

3.2.2 Private life

The term ‘Private life’ is very broad, and the ECtHR has deemed the term unfit for an exclusive definition.48 For this reason, it can be difficult to determine whether a subject is included in its protective sphere or not before the matter has been dealt with by the ECtHR. However, as has been discussed in the earlier sections, previous case law provide ample guidance to such questions.49 Moreover, the scope of the term has been gradually developed through time and in the case of Niemietz v. Germany50, the ECtHR stated that the notion of ‘private life’ should not be limited to the ‘inner circle’ of private life, but should also include a right to establish relationships with other persons’.51 As Harris and others state in the book

Law of the European Convention of Human Rights, the definition of the term has been

extended over time, and this has been done in favour of protecting individuals from arbitrary interferences in their private sphere of life.52 Currently the term encompasses myriad aspects of private life, and the case of Pretty v. The United Kingdom53 provides an overview on

multiple of the characteristics that fall under the remits of the provision. These characteristics’

                                                                                                               

45 See e.g. case Von Hannover v. Germany (n 19) paras 57-58; Ivana Roagna, Protecting the right to respect for

private and family life under the European Convention on Human Rights (Human rights handbooks, Council of

Europe 2012) 10-11. 46 Roagna (n 45) 7, 10-12.

47 David Harris and others, Law of the European Convention on Human Rights (3rd edn, OUP 2014) 522. 48 Costello-Roberts v. the United Kingdom, 25 March 1993, Series A no. 247-C para 36.

49 Roagna (n 45) 10.

50 Niemietz v. Germany, 16 December 1992, Series A no. 251-B.   51 ibid para 29.

52 Harris and others (n 47) 525.

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include inter alia the physical and psychological integrity of a person, gender identification, sexual orientation, sexual life, and the right to personal development.54

In the case Von Hannover v. Germany55, the applicant, who is a member of the royal family in Monaco, claimed that the German press had violated her right to respect for private and family life by publishing various photos of her. In the judgment, the ECtHR reiterated that aspects associated with an individual’s identity, such as the picture of a person, are included in the element of private life.56 Consequently, cases involving revenge porn could be included in the Article’s scope of applicability if the act includes photos of a person. The element of private life also entails a person’s physical and psychological integrity, and certain situations in which a person legitimately can expect privacy, can be protected under Article 8.57

The ECtHR pointed out that in order to determine whether a photograph has been taken in a situation in which an individual ought to have a legitimate expectation of privacy, consideration must be placed on whether the material is of a private or public nature. The pictures of the applicant captured her leaving her residence, going shopping, falling over an obstacle, and in other similar situations to the one’s that has been described.58 Since they depicted her daily life, both on her own and with other people, the ECtHR declared that there was no doubt that the pictures were of a private nature59 Hence, the photos were considered to fall under the ambit of her private life. In respect to this, intimate or sexually explicit material used as an act of revenge porn, should also be considered to fall under the scope of aforementioned term. Not only because such situations are likely to give rise to legitimate expectations of privacy, but also since the ECtHR has stressed that audio-visual media usually gets an immense circulation, and that the protection of individuals in such situations is of particular importance. Especially if the material has been acquired on private premises, and the photos or videos are of an intimate nature.60 Moreover, the remits of private life also include sexual life, and even if many cases that have touched upon this subject have revolved around individuals’ rights to form sexual relations,61 it does not exclude the fact that this sphere of life is indeed included in the element of private life. Bearing this in mind, and due to the content of the material, it ought to be possible that cases of revenge porn could give rise to the involvement of this dimension as well.

Further indication of that the scope of revenge porn falls under the application of private life can be found in Reklos and Davourlis v. Greece62. In the instant case, the applicants lodged a complaint stating that Article 8 of the Convention had been violated on the grounds that their child’s right to respect for his private life had been interfered with.63 The facts revolved around a professional photographer whom had taken two photos of the applicants’ infant son without their permission. The incident occurred within the walls of a hospital, and the photos were never published, but the ECtHR emphasised that the photographer had not acquired

                                                                                                               

54 ibid para 61 see also B. v. France, 25 March 1992, Series A no. 232-C (gender identification); Dudgeonv. the

United Kingdom, 22 October 1981, Series A no. 45 para 41 (sexual life, sexual orientation).

55 Von Hannover v. Germany (n 19). 56 ibid paras 50-53.

57 ibid para 50. 58 ibid para 49. 59 ibid para 61.

60 Mosley v. the United Kingdom, no. 48009/08, 10 May 2011 para 115.

61 See e.g. Dudgeon v. the United Kingdom (n 54); Modinos v. Cyprus, 22 April 1993, Series A no. 259. 62 Reklos and Davourlis v. Greece (n 19).

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prior consent from the parents, and the fact that he had been allowed to keep the pictures.64 In the ruling it was stated that a person’s image is closely connected to one’s personality, and that its protection should be considered fundamental for personal development. On the basis of this, the ECtHR stated that the control of one’s image is a right under the Convention.65 In addition, the person whom is concerned must have consented to having his or her picture taken, and in that aspect, the ECtHR concluded that the domestic courts had failed to properly protect the applicants’ right to private life. However, for this protection to be effective, circumstances similar to the one’s in the case at hand must present. Consequently, the protection is highly contextual and does not apply in situations where a person engages in activities, which are likely to be recorded or photographed.66 Nevertheless, non-consensual photography fall under the remits of Article 8 under circumstances similar to the case at hand, which indicates that it may also be applicable in certain instances of revenge porn.

Moreover, in the case of Söderman v. Sweden67, the applicant was a 14-year-old girl whom had been subjected to covert filming by her stepfather whilst undressing and preparing to take a shower. The ECtHR reiterated that the situation in which the applicant had been recorded, involved truly intimate aspects of her private life.68 Hence, covert filming also fall within the ambit of Article 8. The term private life ought therefore also cover cases of revenge porn since the material at the very least contains intimate images or recordings of the victim. In summation, previous case shows that private life covers a wide variety of situations and aspects of an individual’s personal sphere, and based on the cases that have been referred to in this section one can draw the conclusion that the concept of revenge porn could clearly fall within the remits of the provision of private life.

3.2.3 Family life, home and correspondence

The element of family life contains the right to form relationships and family ties,69 the components that defines a ‘family’ may vary,70 but the obligation for contracting states is to respect subsisting family life.71 Persons subjecting others to revenge porn are regularly someone that the victim has had some kind of relationship with, which is why the act may, to some extent, include certain elements of family life. However, the protection against the matter does not revolve around the respect to family life in the sense that the ECtHR has come to interpret the meaning of the term. The aim is mainly to enable families to ‘lead a normal family life’ and to make it possible for family relationships to ‘develop normally’.72 These components are not the focus of a potential protection against revenge porn, whereas the scope of the matter cannot be considered a right under the term family life in the light of this paper.

Photos or videos, which have been used as part of the act of revenge porn, may have been taken or recorded in one’s home, but the respect for one’s home ought not to be considered suitable for providing protection against subject matter in question. This is because the third                                                                                                                 64  ibid paras 7-8, 41-42.   65 ibid para 40. 66 ibid paras 37, 40. 67 Söderman v. Sweden (n 20). 68 ibid paras 12, 117.  

69 Harris and others (n 47) 564. 70 Danelius (n 23) 393-394. 71 Harris and others (n 47) 564.

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element of Article 8(1) protects individuals’ rights to the enjoyment of their homes. Contracting states are therefore exempted from intruding in the sanctuary of people’s domestic sphere, unless certain criteria have been fulfilled.73 For example, depriving persons of their home requires viable and proportionate reasons,74 as well as a balancing of the interests at stake.75 Consequently, even if there may be some overlap in certain situations, there’s no indication in the ECtHR’s case law that the term contributes to the protection against having personal information distributed against one’s will.

The fourth element, correspondence covers cases where there has been an interference with communications by means of post, telephone, email and fax etc.76 The right contained within the relevant element aims to safeguard the privacy personal communications, and the level of protection is deemed to be very high since the ECtHR has established that opening one letter can be enough to interfere the right in question.77 Since the focus of this study is ill-voluntarily distribution of personal information, this element will not be examined any further since the aspects of it fall outside the scope of this study.

3.2.4 Summary

As mentioned previously, there may be an overlap of the four provisions, and in order to give the Article an autonomous meaning, the ECtHR will normally advance the interpretation of the four provisions on a case-by-case basis.78 In addition, in some cases where an applicant has lodged a complaint under more than one of the provisions, the ECtHR may satisfy itself by only examine one of the elements. This approach was used in Von Hannover v. Germany, where the applicant’s complained of having her private and family life violated.79 The factual circumstances regarding revenge porn may vary from case to case, and the subject can therefore actualise more than one dimension of Article 8. Nevertheless, some factors are more or less constant, which is why the provision of private life seems to be most suitable in general.

3.3 Stage 2 - interferences with Article 8

3.3.1 Negative and positive obligations

As mentioned formerly, the second stage of the test will involve an assessment of whether there has been an interference with the rights contained in Article 8. The primary objective of the Article is negative, and is meant to protect individuals from arbitrary interferences that may compromise the respect for the provisions in the Article.80 However, interferences may be justified in accordance with the requirements in the second paragraph of Article 8, namely that is has been prescribed by law, pursued a legitimate aim, and that it can be considered necessary in a democratic society. Although, the ECtHR will not end its examination if it                                                                                                                

73 Harris and others (n 47) 580. 74 Danelius (n 23) 427.

75 See e.g. Jean-Francois Akandji-Kombe, Positive obligations under the European Convention on Human

Rights: Aguide to the implementation of the European Convention on Human Rights (Human rights handbooks,

No. 7, Council of Europe 2007) 17-18 and Powell and Rayner v. the United Kingdom, 21 February 1990, Series A no. 172 para 41.

76 Copland v. the United Kingdom, no. 62617/00, ECHR 2007-I para 41. 77 Roagna (n 45) 32.

78 ibid10.

79 Von Hannover v. Germany (n 19) paras 43, 81. 80 Harris and others (n 47) 522-523.

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cannot find that an interference has occurred, instead it will continue with ascertaining whether the situation imposes a positive obligation on the contracting party.81 This means that states can become liable for the acts of private entities if the ECtHR finds that the respondent state has not taken appropriate measures to safeguard the rights contained in Article 8.82 For example, in the case M. C. v. Bulgaria83, the ECtHR found that the respondent state had violated Article 3 and 8 of the Convention by failing to adopt appropriate protective measures in cases of rape.84 Acts of revenge porn are typically committed by former partners for the purpose of humiliating the subject in question, and as vengeance for ending a relationship. As mentioned previously, the intimate material can be distributed in numerous ways, such as on social media, or websites, but the common denominator in all of these scenarios is that it is not the state per se that interferes with victims rights, it is another private entity. Therefore, the primary negative obligation under Article 8 cannot be invoked, but it could impose a positive duty on states to protect individuals from the act in question.

The case law that has been referred to indicate that revenge porn fall within the remits of private life, but in order to determine whether the issue could give rise to a positive obligation, an assessment of the competing interests is required. During this stage of the test the ECtHR has established that a fair balance must be struck between the interests that come into question.85 Since the ECtHR is subsidiary in nature, consideration must also be placed on the breadth of the margin of appreciation that the state enjoys.86

3.3.2 Positive obligations and the balancing of interests

Contained within the frame of private life and personal integrity is the right not to have personal information published. This protection applies unless this information can be considered to be of general interest for the community.87 This means that individuals, under certain circumstances, are protected from being photographed or having photos, videos or recordings, of a personal character, shared against their will. The interests that could come into play in cases of revenge porn are one person’s right to acquire and share information, and another person’s right to private life. A ruling in favour of the protection of Article 8 may therefore constitute an interference with the distributors freedom of expression, a right that is contained in Article 10 of the Convention, and which considered a corner stone in modern day democracies. Subsequently, the threshold is very high, and the protection in Article 10 extends to material that can ‘offend, shock or disturb’. The ECtHR has reasoned that such demands are necessary in order to preserve pluralism, tolerance, and openness, which are vital pillars in a democratic society.88 Furthermore, interferences with Article 10 must be prescribed by law and pursue a legitimate aim.89 The law in question must be sufficiently foreseeable, which means that individuals should, to a certain extent, be able to predict the possible consequences of certain behaviours.90 The legitimate aims for interfering with Article 10 are stated in the second paragraph of the provision, and an example of such an aim is the protection of the reputation or rights of others. In cases where the values in Article 8                                                                                                                

81 Roagna (n 45) 11.

82 Harris and others (n 47) 523. 83 M.C. v. Bulgaria (n 22). 84ibid paras 186-187.

85Harris and others (n 47) 524. 86 Danelius (n 23) 56.

87 ibid 377.

88 Handyside v. the United Kingdom, 7 December 1976, Series A no. 24 para 49. 89 ECHR (n 18) art 10(2); Harris and others (n 47) 649-652.

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and Article 10 collide, the ECtHR will evaluate the interests at stake and make a decision based on proportionality.91 It is also worth noting that the ECtHR has established that equal attention should be paid to both of the conflicting values regardless of which Article that the complaint in question has been lodged under.92 Consequently, in order to determine whether protection against revenge porn could give rise to a positive duty one must examine the circumstances under which the protection of private life and personal integrity can be considered to prevail over the general interest.93

In the Case of Von Hannover v. Germany, the ECtHR started examining the respondent state’s compliance with Article 8 after concluding that the complaint did fall under the protective scope of the applicant’s private life. The ECtHR reiterated that the applicant did not complain of an interference made by the state, but rather that the state did not provide sufficient protection in regards of her image and private life. In the light of this, it was also noted that in addition to the primary negative obligation under Article 8, positive duties might arise in the interest of ensuring protection for private life.94 Such obligations can for example involve the adoption of measures that can safeguard individuals from other private entities. By referring to the case of Schüssel v. Austria95 the ECtHR concluded that this may also apply in regards of protecting a person’s picture from being abused by others.96 In addition, it found that the particular circumstances in this case gave rise a positive obligation to protect the applicant.97 Since this was a press related matter, due consideration was taken in regards of the importance of freedom expression, and the ECtHR emphasised the right’s fundamental role in a democratic society.98 However, when the ECtHR balanced the interests preserved in Article 8 and Article 10, the applicant’s right to private life was deemed to prevail over freedom of expression. This was inter alia because the photos were of a personal, and sometimes intimate nature, and according to the ECtHR they did not contribute to the spreading of ideas.99 Moreover, the ECtHR reiterated that there is a fundamental distinction between reporting details of a person’s private life, and reporting facts that can contribute to public debate. Especially when the individual in question has not been assigned any official functions. Hence, the ECtHR ruled that the current publications did not add to either public or political debate, which has been deemed a decisive factor when it comes to the balancing of the rights in question.100 It further clarified that publication’s with the single purpose of satisfying a particular readership’s curiosity in regards of details of an individual’s private life, cannot be considered to contribute to any debate of common interest, even if that person is famous or known to the public.101 In such cases, the freedom of expression must yield for the interest of respecting a person’s private life, especially if the photos in question have been taken by means of continual harassment.102 The ECtHR justified this with stating that even people whom are known to the public need to be able to enjoy a certain amount of protection of their private life in situations where they ought to have a legitimate expectation of

                                                                                                               

91 Danelius (n 23) 377.

92 Delphi AS v Estonia, no. 64569/09, 16 June 2015 para 110. 93 See e.g. Von Hannover v. Germany (n 19) paras 57-58. 94 ibid paras 56-57.

95 Schüssel v. Austria, no. 42409/98, 21 February 2002. 96 Von Hannover v. Germany (n 19) para 57.

97 ibid paras 78-81. 98 ibid para 58. 99 ibid para 59. 100 ibid paras 63-64. 101 ibid para 65. 102 ibid paras 59, 70.

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privacy.103 Moreover, the ECtHR stated that in situations similar to the one at hand, the interpretation of freedom of expression in Article 10 calls for a narrower approach, and this despite margin of appreciation that contracting states enjoy. Hence, the ECtHR found that the respondent state’s failure to protect the applicant’s right to private life had constituted a violation of Article 8, and this by failing to strike a fair balance between interests.104

The conclusion one can draw from this is that the protection against having one’s pictures published in the media is wider if the person is not a public figure.105 Nevertheless, the protection applies for individuals well known to the public as well, specifically if the photos are of a private nature and does not contribute to public debate. This protection ought therefore extend to intimate or sexually explicit pictures of a person, regardless of whether that individual can be considered publicly known or not. This assuming that the sole intention is to publish details of the subject’s personal life. Additionally, in line with ruling in Von

Hannover v. Germany, such material ought to constitute a situation where the person in

question must have had a legitimate expectation of privacy for his or her private life. Consequently, it is reasonable to assume that the respect for private life includes protection against revenge porn. Especially since the ECtHR has emphasised the value of caution regarding publishing of intimate and personal material.106

In Reklos and Davourlis v. Greece, the ECtHR found that the particular circumstances of that case gave rise to a positive obligation to protect the applicants’ right to private life.107 As mentioned previously, the case revolved around photos that had been obtained without consent. In regards of striking a fair balance between interests, the ECtHR noted that the applicant’s son was not a public figure, and that the situation in which the photos were taken, could not be considered of a public interest. Hence, the acquirement could not be justified on those grounds even considering the principle of margin of appreciation.108 It is also worth noting that the ECtHR did not find that the photos in themselves could be considered degrading in nature, but placed emphasis on the fact that the photographer had been allowed to keep the pictures’ and therefore had been in control of them.109 This clearly indicates that there is an inherent duty to protect individuals from non-consensual photography in the context of revenge porn, and this right extends to the control of such material. Particularly since such material cover individuals in more intimate aspects than in the case at hand. Furthermore, in the case of Söderman v. Sweden, the ECtHR recalled that positive obligations may be inherent in Article 8, and that situations concerning central aspects of an individual’s identity, or when the instant case involves a very intimate facet of private life, the margin of appreciation is deemed to be narrowed.110 It was also stated that actions that can give rise to violations of psychological integrity may require protection in the form of an adequate legal provision, which protects individuals’ from such acts. According to the ECtHR, these can consist of both civil- and criminal law provisions.111 As the applicant in the instant case was a minor the situation was considered aggravated, especially since the covert filming had                                                                                                                

103 ibid paras 68-69. 104 ibid paras 79-80. 105 ibid paras 69, 77.

106 Mosley v. the United Kingdom (n 60) para 115. 107 Reklos and Davourlis v. Greece (n 19) paras 35, 43. 108 ibid paras 41, 43.

109 ibid paras 42, 43.

110 Söderman v. Sweden (n 20) paras 78-79. 111 ibid para 85.

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occurred in her home.112 Moreover, it was concluded that the Swedish law at the time, namely in September 2002, did not provide sufficient protection for the applicant’s right to respect for her private life. This was due to the fact that none of the laws the domestic courts applied covered the issue at hand, namely the act of covert filming.113 The ruling in this case demonstrates that contracting states need to have adequate legal provisions in place to protect individuals from being covertly recorded. Consequently, protection against revenge porn ought to be a right under Article 8 of the Convention if the material has been obtained covertly. Expressly since the material covers very intimate details of a person’s private life.

3.3.3 Summary

In the light of the cases that have been referred to one can draw the conclusion that there is an existing duty of contracting states to protect individuals from being subjected to revenge porn.

Von Hannover v. Germany indicates that the circumstances in which the material has been

obtained ought to constitute situations where people have a legitimate expectation of privacy. Moreover, considering the intimate and personal material that the subject revolves around, the distribution of it cannot be considered a general interest, or a contribution to public debate, not even when weighed against the freedom of expression.

Even if the person in question is a public figure, particular caution must be exercised in regards of publishing material that contains very intimate details about an individual. Furthermore, as seen in the reasoning of Reklos Davourlis v. Greece, and in Söderman v.

Sweden, the Convention contains protection against non-consensual and covert photos and

recordings. This further proves that contracting states ought to have an obligation to protect individuals against revenge porn. Moreover, the ECtHR even criticised the respondent state in the former case permitted the photographer to continue to possess the photos which were taken without consent. By reason of that, the consequences of that action resulted in that the applicants were not in control of their son’s image. In the light of this, there ought to be an additional duty for states to adopt measures prohibiting the possession of material that has been illicitly acquired. Undoubtedly, this protection should also apply to revenge porn-related material.

In conclusion, the ECtHR’s jurisprudence suggests that contracting states have a positive duty to protect individuals from the act of revenge porn.

4. REVENGE PORN IN THE CONTEXT OF SWEDISH LEGISLATION

4. 1 Swedish legislation and case law

There is no current Swedish legislation, which explicitly bans the act of revenge porn, but a combination of different laws have been used to form a certain degree of protection against the act. Prior to the adoption of the legal provisions regarding intrusive photography on 1 July 2013,114 covert photography was not considered a criminal act. As the ECtHR concluded in the case of Söderman v. Sweden, the lack of such a law constituted a breach of Article 8 of the ECHR. The legal position has evidently changed along with adoption of a provision that bans intrusive photography, but since the Swedish courts tried to remedy the legal gap that                                                                                                                

112 ibid para 86. 113 ibid para 117.  

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pervaded the system before covert photography was criminalised, there is an extensive amount of jurisprudence on the subject, which has contributed to a very complex and sometimes ambiguous legal practice.

The central provisions that regulate events that include aspects connected to revenge porn can be found in the Swedish Penal Code.115 The relation between these laws is complicated, especially in the context of revenge porn, since the basis of these laws has not been to protect individuals from having intimate and sensitive material distributed.116 In order to understand how these legal provisions have come to function in practice one must examine case law. The following sections in this chapter will therefore discuss how the provisions regulating defamation, molestation, sexual molestation and intrusive photography correlates to the subject of revenge porn, and how these laws have been applied in cases revolving around the issue.

4.1.1 Defamation

Chapter 5 Article 1 of the Swedish Penal Code reads as follows:

“A person who, accuses someone of delinquent or deplorable behaviour, or shares derogatory information about someone, with the intention of subjecting that person to public contempt shall be sentenced for defamation to a fine.

No criminal responsibility shall be imposed if the information was shared in the course of duty, or if the act is justifiable considering that the information was true or that the distributor had other reasonable grounds for sharing the information.”117

Within the Swedish legal system, defamation belongs to a category of crimes called slander, the aim and purpose of the provision is to protect personal reputation and honour.118 The regulation criminalises defamatory statements such as accusing someone of delinquent or deplorable behaviour, or sharing derogatory information about someone with the intention to subject the victim to public contempt. There are, understandably, exceptions to the main rule, and in certain situations the protection against derogatory statements will have to yield in the interest of preserving freedom of expression. Therefore, the verity of the information or statements in question may play a role in such an assessment. However, veracious information may also constitute defamation if it has been spread with the purpose of subjecting the victim to public contempt.119 This means that in order for a piece of information to be considered defamatory, it must negatively affect the way the surroundings view the victim. Hence, the victim’s own subjective opinion does not matter when it comes to deciding whether a statement is defamatory or not.120 Furthermore, the general rule is that statements containing value judgments cannot be considered ‘information’ within the meaning of the provision. This is because the provision requires that it must be possible to try the verity of the statement since it can be a justifiable cause in regards of freedom from                                                                                                                

115 Sackemark and others (n 26) 25. 116 SOU 2016:7 (n 6) 22.

117 The translation is not an official text, it is my own interpretation which has been inspired by the translations provided for in Söderman v. Sweden (n 20) paras 28, 43, regarding Sexual molestation and intrusive

photography. The original text can be found in the Swedish Penal Code (n 21) chap 5 art 1. 118 Sackemark and others (n 26) 50.

119 Suzanne Wennberg, Intorduktion till Straffrätten (9th edn, Nordstedts Juridik 2011) 50-51. 120 Sackemark and others (n 26) 50-51.

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liability. If a person has a responsibility to share the information, or had a reasonable cause to do so, no criminal responsibility will be imposed on that person.121

The term ‘shares’ means that the information can be spread in various ways, for example in written form, verbally, or through a photograph or a recording.122 In accordance with the requisite ‘with the intention of subjecting that person to public contempt’, pictures and recordings cannot be considered defamatory on their own. Not even if the material is of an intimate nature. Instead, focus will be placed on the intent of the offender, and how the victim is presented within the material.123 The cases below demonstrate how the provision has been applied on cases containing aspects similar to the concept of revenge porn.

In case NJA 1992 s. 594, the plaintiff had been videotaped whilst having intimate relations with the defendant, and the recording was subsequently presented to multiple of the plaintiff’s acquaintances’. The Swedish Supreme Court reiterated that there was no general law prohibiting covert filming at the time when the crime was committed. Instead, focus was placed on the subject matter of the recording, and what kind of information that was provided about the plaintiff. The Court recognised that the material was sensitive and contained very personal details of her. Considering the sensitivity of the recording, and the demeaning reactions from people in her surroundings, the Court determined that it must had been the defendant’s intention to subject the plaintiff to public contempt, and he was therefore convicted for the offense of gross defamation.

Defamation may also constitute a breach of the Freedom of the Press Act or the Fundamental Law on Freedom of Expression.124 As can be seen in case NJA 2003 s. 567 which, did not deal with any aspects of revenge porn per se, but it concerned the adjudication of defamation within the frames of breaches of the Freedom of the Press Act. The Swedish newspaper,

Expressen, published an article about the plaintiff. The article in question was considered very

misrepresentative and contained false information about the plaintiff. The nature of the information was intimate and of a sensitive nature, and the Court found that intention of the author must have been to subject the plaintiff to public contempt. On this basis, the Swedish Supreme Court found the publisher in charge guilty of violating the Swedish Freedom of Press act, in conjunction with the Swedish Penal code. It was determined that the distribution of false information about the plaintiff constituted defamation as prescribed for in the above-mentioned laws.

In NJA 2015 s. 86, the defendant recorded himself and the plaintiff while they were having intimate relations. The plaintiff had been unaware of the recording, but discovered it after the defendant had uploaded it on two different pornographic websites. In the hearing of the case, the defendant admitted to having committed the actions per se, but objected to the prosecutor’s claims regarding intent. He maintained that it had not been his intention to subject the plaintiff to public contempt. He also claimed that the plaintiff had known about the recording and had consented to being taped whereas he should be considered innocent and freed of the charges. The Swedish Supreme Court took due consideration to the requirements

                                                                                                               

121 ibid 51-53. 122 ibid 51.  

123 Berggren and others, Brottsbalken: En (Commentarie to chap 5 art 1, Wolters Kluwer Sverige AB 2016) <http://zeteo.wolterskluwer.se.db.ub.oru.se/home> accessed 18 May 2016.

124 SOU 2016:7 (n 6) 397; Freedom of the Press Act (Tryckfrihetsförordning (1949:105)) chap 4 art 7; Fundamental Law on Freedom of Expression (Yttrandefrihetsgrundlag (1991:1469)) chap 5 art 1.

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set out in Article 8 of the ECHR, and referred to cases such as X and Y v. The Netherlands125 and Avram and Others v. Moldova,126 when deciding the case. It reiterated that the defendant had grossly violated the plaintiff’s personal life, and judging by his actions, that it must have been his intention to subject her to public contempt. Hence, in the light of the protection contained in Article 8, and in accordance with Swedish legislation, the defendant was found to be guilty of gross defamation.

The above-mentioned cases show that there is an existing protection against the act of non-consensual sharing of intimate material within the Swedish legal system. Although, it only applies if it can be proven that the offender intended to subject the victim to public contempt. For example the dissemination of nude pictures have rarely been considered to reach the threshold of defamation.127 Hence, the focus of the provision does not lie on the actual distribution of the material, but as can be seen in the cases above, it does provide protection against the act under certain circumstances.

4.1.2 Molestation

Chapter 4 Article 7 of the Swedish Penal Code read as follows:

“A person who, physically harasses, or by means of gunfire, stone throwing, noise disturbances or other ruthless behaviour molests someone, shall be sentenced for molestation to a fine or imprisonment of a maximum of one year.”128

The crime of molestation regulates certain types of violations of integrity, and the wording of the provision specifies a couple of situations that may amount to an offense. However, the term ‘other ruthless behaviour’ shows that the scope is broader than the precise situations that are specifically stated in the text. Unwelcome courtship or intrusive and repeated phone calls can for example constitute other ruthless behaviour,129 but in order for the act to be considered a criminal offense it must demonstrate a certain degree of ruthlessness and constitute a severe violation of integrity. Furthermore, the victim must have perceived the offense while it was performed i.e. the victim must have been aware of the illicit deed during the time it was executed.130

A demonstration of the importance of the time aspect can be found in case NJA 2008 s. 946, where the defendant was convicted of molestation for having filmed his former partner while she was having intimate relations with another man. In the case at hand, the defendant had installed electronic recording devices in his former partner’s home without her knowledge. The recordings with the intimate content were then sent to the plaintiff’s mother and a couple of her colleagues. The district court that ruled in the case, convicted the defendant for unlawful tapping and defamation, but acquitted him of the charges regarding molestation. It concluded that there was no existing legislation prohibiting covert filming at the time, and that the charges on that point should be dismissed since the victim had not perceived the deed                                                                                                                

125 X and Y v. the Netherlands (n 22).

126 Avram and Others v. Moldova, no. 41588/05, 5 July 2011. 127 SOU 2016:7 (n 6) 273.

128 The translation is not an official text, it is my own interpretation which has been inspired by the translations provided for in Söderman v. Sweden (n 20) paras 28, 43, regarding Sexual molestation and intrusive

photography. The original text can be found in the Swedish Penal Code (n 21) chap 4 art 6. 129 Berggren and others (n 122) Commentarie to chap 4 art 7.

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