The Swedish Supreme Court recently rejected a request from the Prosecutor-General for a search warrant against certain IT equipment stored at the Swedish newspaper Aftonbladet (Aftonbladet Hierta AB ./. Prosecutor-General, Ö3074-15, 18 august 2015).
A Swedish jewelry store was robbed by armed robbers in spring 2015. Two persons assisted the robbers by placing caltraps. Pictures showing these two men had been transmitted digitally to Aftonbladet for the purpose of publication in the newspaper. The pictures were published by Aftonbladet, however with masked faces. The police wanted access to the non-masked pictures in order to identify the robbers.
The district and appellate courts both granted the search warrant and the right to seize the image files.
Under Swedish law the police may be granted the right to seize digital files that reasonably can be assumed to have relevance for a crime investigation. However, this does not apply to such files that may contain information that a person is prohibited to disclose under the Swedish Freedom of the Press Act. This covers for example information on the identity of a person that has provided information to a news publisher for publication in printed media.
Aftonbladet had raised concerns that the digital files may contain certain metadata that the police could use to identify the provider. If this would have been shown by Aftonbladet in the proceedings, the Swedish Supreme Court would have rejected the request to seize the pictures on this ground. However, since this was not shown, the Court instead looked into whether the police could be granted a search warrant, which in any event is a prerequisite for any such seizure.
The police’s request concerned the IT equipment, i.e. computers/servers etc., on which the image files were stored. The Court expressed particular concern that examination of such equipment at a news publisher could disclose huge amounts of other protected and integrity sensitive information, e.g. the identity of persons providing information to the newspaper and wishing to be anonymous. Since the request as filed did not specify more precisely which equipment/information carrier that was to be searched the Court found this risk significant.
Under Swedish law, the so called principle of proportion entails that in granting a search warrant the risk of disclosure of sensitive side information shall be weighed against the value of the information for the police investigation.
In its assessment, the Court referred to art.8 of the European convention on Human Rights regarding the right to respect for private and family life. The Court further noted that the right to communicate information to editors, as protected by the Swedish Fundamental Law on Freedom of Expression and which is the underlying reason for the right to anonymously provide information to a publisher, is important for the freedom of speech and a free press. If the protection of the anonymity of the provider of information was undermined, the news media’s ability to provide correct and important information to the public could be put at risk. Against this background the Court reasoned that there is a very limited risk tolerance against searches at a news media publisher.
Even though the interest of the police investigation was strong, the Court ruled that it was not proportionate to grant a search warrant under the circumstances at hand.
In sum the Court’s ruling emphasizes the strength of the right to anonymously provide information to a publisher and also makes it very clear that the police and prosecutors must under all circumstances be very precise when requesting information from a publisher.