The legal strategies employed by France and Sweden to combat the Covid-19 pandemic differed significantly. Indeed, the articulation of hard law and soft law instruments varied, particularly due to differences in the trust placed by the state in its citizens. Meanwhile, both countries faced the same necessity of implementing efficient and effective standards designed to combat the pandemic. However, the fluctuating context in which these norms were established, along with the difficulty for the intended recipients to distinguish between what was mandatory and what was merely advisory, significantly contributed to the lack of legibility in health regulations in both countries.

Le droit d’accès aux documents officiels suédois a célébré ses 250 ans en 2016. Ce droit, communément appelé « principe de publicité » (offentlighetsprincipen), a ainsi fait son apparition en Suède plus de deux siècles avant sa reconnaissance par d’autres droits nationaux. Son introduction remonte à l’entrée en vigueur, en 1766, de la première Loi fondamentale sur de la liberté de la presse, dont il faisait partie intégrante. En effet, depuis ses origines, liberté de la presse et droit d’accès sont conceptuellement liés, le droit d’accès aux procès-verbaux administratifs, par exemple, étant une condition préalable à leur publication dans la presse et autres écrits. Aujourd’hui, les objectifs mis en avant pour justifier l’accès aux documents officiels sont tout particulièrement « la garantie de la sécurité juridique, l’efficacité de l’action administrative et l’efficacité du gouvernement par le peuple ».

This publication gathers contributions addressing challenges posed to the Rule of Law. Several of the articles deal with challenges related to the right to privacy while most of the articles deal with challenges generated by the digitalization of the society – both questions being often interrelated.    

The authors of the articles belong to different disciplines (public law, archival science as well as Information, Education and IT ) and represent different countries (UK, Algeria, Denmark, France and Sweden). 

Parliaments, which are the pillars of democracy, face many challenges to which they have to adapt. In this report the authors focus on some of these challenges.

Emmanuel Cartier analyses the impact of the phenomenon of the acceleration of time on the Parliament’s three functions: legislation, government oversight and scrutiny as well as the represention of society. The analysis is conducted comparatively and includes the Parliament of five European countries and the European Parliament.

Patricia Jonason examines the challenges facing Parliament in terms of representativity, transparency and accountability of elected officials. The analysis focuses on the rules and mechanisms concerning the Swedish Riksdag and on the European standards.

Swedish administrative law has been subject to extensive changes in recent decades, due to two interrelated processes, Judicialisation and Constitutionlisation. These changes, reflected by an improvement in the position and importance of the Judiciary and the Constitution, are closely related to Europeanisation. 

Först nu när Sverige får sin tredje förvaltningslag får Frankrike, hösten 2015, sin allra första enhetliga författning på området: le Code des relations entre le public et l‘administration, balken om förhållandet mellan allmänheten och förvaltningen. Balken samlar, på ett strukturerat och detaljerat sätt, den omfattande rättspraxis från den högsta förvaltningsdomstolen Conseil d’Etat samt de olika författningar av allmän karaktär som gällde på området. I denna artikel presenteras den franska balken utifrån en komparation med den nya svenska förvaltningslagen. Först redogörs för lagarnas historiska utveckling och de skäl som ligger bakom. En presentation av författningarnas systematik kommer sedan, följd av en analys av skillnader och likheter vad gäller valda rättsfigurer och lagstiftningsval. Sammanfattningsvis påvisar denna komparativa studien likheter i termer av lagarnas innehåll och disposition. Däremot konstateras väsentliga skillnader när det gäller lagstiftningstekniken, skillnader som förklaras av skilda lagstiftningstraditioner. Vidare kan man ur formuleringarna av lagarnas bestämmelser utläsa skillnader mellan Frankrike och Sverige när det gäller statens syn på den egna tjänstemannakåren.

Google Inc has received 54,038 requests to dereference Swedish URLs since the judgement of the Court of Justice of the European Union, C-131/12 Costeja. After examining these requests, Google removed 43.7% of the search results (i.e. 23,613 URLs) but refused to dereference in 56.3% of cases (i.e. 30,425 URLs). In other words, Google refused to grant the dereferencing requests in a little over half of the cases, which corresponds to the average recorded by the American Internet search engine across all European countries.3What kind of help from public authorities may individuals to whom a request for delisting has been denied by the operator of a search engine have at their disposal? In other words, how do the Swedish authorities apply the Google ruling? These are the questions tackled in this paper, first focusing on the manner the Data Protection Authority, the Datainspektion (DI), deals with the issue, then looking at how the courts handle complaints against a search engine operator’s decision not to delist an incriminated URL.

According to the landmark judgement Google Spain of 13 May 2014 of the European Court of Justice, search engines have under certain conditions the obligation to de-index search results (URLs) containing personal information. This obligation to execute the so-called right to be forgotten does not apply however when the interest of the public of having access to the information at issue overrides the right of privacy of the data subject, which emphasises the question of the balancing between the right to privacy and the freedom of expression. The paper first contains a succinct analysis of the criteria referred to by the European bodies, the EJC and the Article 29 Data Protection Working Party, for achieving the balancing between the right to privacy and the freedom of expression. Second, the paper examines the actors involved in the balancing of interests when the right to be forgotten is applied, i.e. the actors whose freedom of expression is potentially restricted by the application of the right to be forgotten and the actors in charge of the balancing of interests.

* This paper mirrors an introductory presentation for a workshop on The Right to Be Forgotten: The Balance between the Right to Privacy and Freedom of Expression, that took place on September 9, 2017 at the Legraina EPLO premises, Sounion, Greece.

Right to be Forgotten in Sweden 

Google has received about 15,000 requests for delisting regarding Swedish websites. Yet, in more than half of the cases the American search engine operator refused to remove the disputed websites from their results.

What kind of help may individuals to whom a request for delisting has been denied expect from public authorities expect from public authorities? In other words, how do the Swedish authorities apply the Google ruling? These are the questions we tackle in this paper, first by focusing on the manner in which the Data Protection Authority, the Datainspektion (DI), deals with the issue; then by looking on how the courts – in the current case, the ordinary judge – handle complaints against search engine operators’ decisions not to delist incriminated URLs.

The first section, dedicated to the theme of the right to be delisted and the data protection authority, begins with a brief review of the information provided by the Data Protection Authority’s website on the right to be forgotten and the manner to exercise it. We notice that there is a need for clearer information but that some improvements seem to be underway, not least concerning the right to erasure laid down in the General Data Protection Regulation.

The next two parts of Section 1 deal with the twofold procedure initiated in May 2015 by the DI towards Google, following complaints submitted to the Swedish authority. One part of the procedure concerns thirteen individual complaints selected by the DI that the Swedish supervisory authority required Google to review. The second part of the procedure consists of a general investigation of the way the American search engine operator complies with the European case law on the right to be forgotten. In a decision closing these two procedures on May 2nd 2017, the Data Protection Authority, assesses that in five of these cases Google’s reiterated refusal to delist websites from the search results were in breach of the Swedish data protection legislation and requires Google to delist the incriminated websites by August 2nd 2017. Moreover, the Swedish Data Protection Authority makes two recommendations to Google with regard to the procedure its removals-team follows when receiving a request from an individual to remove links. Additionally the DI requires Google to apply the right to be forgotten not only for search results on Google’s Swedish pages, but also on Google’s search engine for other countries that ”have such a relationship to Sweden and to the data subject that they cause an infringement in the privacy of the data subject”. The American search engine operator has three weeks from the date of reception of the decision for lodging an appeal to the administrative court.

The second section, entitled The right to be delisted and the ordinary judge, provides an analysis of the first Swedish judgment in the field. The court of first instance of Stockholm, in its decision from May 9^th 2016, made upon the appeal of a businessman in the construction sector complaining about the refusal of Google to remove links to webpages publishing critical articles regarding the plaintiff, decided in favor of the search engine operator. We analyse this judgement with a particular focus, first, on the balancing of the interests the judge makes in the present case, as well as on the legality of the data processing, and, second, on the question raised by the defendant on the competence of the ordinary judge to prohibit the continued processing of data. On the first issue, the Swedish authority, taking inter alia into account the role of public figure of the plaintiff and the seriousness of the news outlets which published the incriminated articles, concluded that the interests of Google and third persons to diffuse and access information contained in the articles outweight the right to protection of privacy and the right of data protection of the plaintiff. Consequently, the judge assessed that the data processing wasn’t illegal. On the second issue of the competence of the ordinary judge to order the cessation of the listing of websites, we first review the different opinions on that issue before raising the question of the compliance of the Swedish legal framework in terms of the effectiveness of the application of the European ruling on the right to be delisted.

Our general conclusion is that it is too early to give a straightforward appreciation on the way the Swedish authorities apply the right to be forgotten. Indeed, we don’t know how the legally robust decision taken by the DI in May 2017 will impact its policy in the field of the right to be forgotten; will the DI, for instance, endorse more individuals’ complaints? Furthermore, to this date, there has been no decision on the right to be forgotten by the administrative court and only one by an ordinary court. In any case, the absence of obligation for the Datainspektion to forward individual complaints to search engine operators, if combined with a lack of power for the ordinary judge to order a delisting, would raise questions on the effectivness in Sweden of the application of the right to be forgotten.

The paper examines the balancing between the right of access to information and the right to privacy in the context of online proactive disclosure of personal data. Proactive disclosure is understood as disclosure of information made by public authorities without a request having previously been made for such disclosure. Interestingly, the release upon request of official documents containing personal data normally does not activate data protection legis-lation in Sweden. In the case of proactive disclosure of official documents containing personal data, however, the data protection legislation must be followed. Jonason presents and analyses the legal framework, and shows how it has evolved over time. She illustrates the legal framework through the analysis of cases on proactive disclosure handled by the Swedish Data Protection Authority. In addition, guidelines concerning online proactive disclosure, drafted by the same authority for the benefit of local authorities, are taken into consideration. Jonason is especially interested in the balance-ing between the interest to protect privacy of the data subject and the interest of ensuring openness and transparency, and how this balancing is conveyed in the letter of the law, the preparatory works, as well as in the concrete implementation made by the Data Protection Authority. The conclusion reached by Jonason is that the current legal framework, constituted by different “layers”, is intricate. Changes on data processing made by public authorities should be expected, however, due to the General Regulation on Data Protection that will enter into force in 2018. This might constitute an opportunity for the legislator to rationalise the current legal framework.

This publication gathers presentations from an international and trans-disciplinary workshop held at Södertörn University in December 2016.

The workshop entitled The Right of Access to Information and the Right to Privacy: A Democratic Balancing Act was one of the many events which celebrated the 250th anniversary of the Swedish Freedom of the Press Act, the first legal instrument in the world laying down the right of access to official documents. A starting point for the workshop was the assumption that the right of access to information and the right to privacy are both necessary pre-conditions for a democratic society. Researchers from a broad range of fields were invited to discuss how these assumptions should be examined, and how the balance between the two interests should be assessed when conflicting with each other. The objective of the workshop was to broaden our understanding of various national and disciplinary approaches to the democratic balance between the right of access and the right to privacy.

Among the conclusions we may draw from the workshop, and the articles emanating from it, is the confirmation of the need to strike the balance between the right of access and the right to privacy. This is certainly difficult, but since the two interests are both of such importance for democracy, we constantly need to make the effort. The articles in this volume contain information on some of the areas that need our further attention.

An effective, inclusive democracy requires maximal transparency of ‘public information’ while, on the contrary, limiting transparency of ‘personal information’ to the minimum. However, these two transparencies have an intricate relationship: they may be independent of each other, complementary to each other, or antinomical. Additionally, the development of an information society that leads to the fusion of the  private and public spheres, the cross-utilization by the public and private sectors of their respective data, and to an increase in the dangers common to both sectors, further complicates the picture. In weakening individuals as human beings and citizens, the digital era generates threats for democracy and the Rule of Law. There is, therefore, a need for an adequate protective framework and for the main legal protagonists to face the new informational and societal challenges. The obligation to preserve underlying, foundational democratic values lies also with the business sector and with citizens themselves.

Pour faire face aux disparités territoriales qui affectent les capacités financières des communes, la Suède a mis en place un système de péréquation qui comporte cinq volets : les deux principaux sont la péréquation des revenus et la péréquation des coûts. S’y ajoutent la dotation de structures, la dotation pour coûts d’entrée ainsi qu’un compte de régularisation. Chacune de ces composantes est divisée entre un système dédié aux communes et un système dédié aux comtés. Ce système permet de concilier une large autonomie locale et l’égal accès de tous les citoyens au même niveau de service.