Sweden's constitution under review due to privacy concerns, but do the ends justify the means?

For readers who are not familiar with the Swedish constitution, the principle means, in practice, that anyone is free to request public documents held by authorities. With a certificate of publication, which in turn provides for a protection equivalent to media in print, online search services can compile the same information and spare the workload of contacting several authorities. Such search services are commonly used by individuals, employers, and journalists. When Sweden adopted its supplementary provisions to the GDPR, the constitution was amended to prevent the publication of sensitive personal data by search services online. 

The current proposal is focusing on public access to official documents in general. The government is concerned that the compilation of large amounts of data online is helping criminals to study potential victims or target publicly employed personnel. The government also intends to address the increased number of complaints from individuals having their personal data published by search services. 

On 20 November 2024, the government proposed a significant judicial change to the constitution; namely limiting freedom of information if the content published constitutes an "improper breach of privacy" (SOU 2024:75). The exception should be assessed based on the (i) nature of the personal data, (ii) scope of the disclosure, and (iii) purpose of the disclosure. This, however, is not exhaustive and the exception requires an overall assessment on a case-by-case basis.

It is my opinion that the suggested exception is vague and far too broad. The factors to be considered requires a subjective assessment of the publication itself, which creates a tension with the freedom of information and the press. The right to access and share public information via (protected) news or media outlets should not be evaluated based on what could breach the private sphere in a particular case. It is a disproportionate solution which, I believe, will have little impact on the problems raised in the legislative proposal. Even if the proposal can be argued suitable for the media landscape we are navigating now, we cannot foresee the consequences for the future. Especially since a change in the constitution can be used to adopt far more restrictive regulations under statutory law. 

The proposal is currently referred for consultation. Responses to the consultation must be received by the Ministry of Justice no later than 10 March 2025.