Rättsfall
| Sverige
| B 568-21, B 374-20
| 8/18/2023
Whether defamation is made in constitutionally protected or other media can have decisive effect. This is shown in two judgments from Stockholm District Court and the Svea Court of Appeal. The cases concern similar statements made relatively close in time by a woman about a man. However, the woman was convicted in one case but acquitted in the other.
Whether defamation is made in constitutionally protected or other media can have decisive effect. This is shown in two judgments from Stockholm District Court and the Svea Court of Appeal. The cases concern similar statements made relatively close in time by a woman about a man. However, the woman was convicted in one case but acquitted in the other.
Books are constitutionally protected media, but Instagram and Facebook are not. For defamation in a book the Chancellor of Justice is the sole prosecutor. Prosecution for defamation on Instagram or Facebook are handled by the public prosecutor.
Between October 16, 2017, and August 21, 2018, in connection with the breakthrough of the #MeToo movement, a woman named a man, a well-known journalist, in posts on Instagram and Facebook and claimed he raped her in 2006. The public prosecutor deemed this to be defamation and prosecuted the woman (case B 374-20).
In August 2020, the woman wrote and published a book in which she made similar statements but without naming the man. The Chancellor of Justice deemed this to be defamation and prosecuted the woman (case 568-21).
Cases on defamation in constitutionally protected media are typically adjudicated by a jury. In a jury trial no grounds for the judgment are given and if the jury acquits the defendant such acquittal cannot be overruled by a superior court.
The jury acquitted the woman.
The Court of Appeal held that the man was defamed by being pointing out as a rapist.
As regards the of whether the statements were justifiable, the Court of Appeal reasoned as follows. Like the district court the Court of Appeal held that the man’s position did not mean that he must accept an equal scrutiny of his actions as, e.g., a leading politician. However, unlike the district court, the Court of Appeal held that the information had some connection to his professional role since it could have impact on his credibility as a feminist writer and opinion maker. Furthermore, the Court of Appeal stated that a significant factor is the time lapse between the alleged event and the statements. Here, the event was eleven years old at the time of the first post.
Considering that the information referred to events that occurred far back in time, that the information was given to a large group of people and that the man did not belong to those who must withstand the closest scrutiny, the Court of Appeal considered that the statements were not justifiable.
The Court of Appeal also established that it is not automatically defensible to defame an individual because it’s done in the context of #MeToo and that an assessment must be made in each case. Stressing that the woman could have shared her story without naming the man, that her statements also included crimes that she was not exposed to, that there was a long time lapse between the events and the statements and that she had spread her statements to a large number of people and facilitated further spreading through other people, the Court of Appeal stated that also in the light of #MeToo the statements were not justifiable.
The Court of Appeal found the woman to be guilty of gross defamation on seven occasions. Here it referred to a recent Supreme Court ruling, NJA 2020 s. 917, in which the Supreme Court stated that defamation is not a continuing crime, and that defamation ends when it is completed. The Court of Appeal also stressed that for defamation the extent of the crime is decided firstly by the number of plaintiffs and secondly by the time related and spatial context. Based on this, the Court of Appeal judged that identical posts on Facebook and Instagram the same day were one crime, while two posts on Instagram published on different days with different content and partially different angles, were two crimes.
In November 2022, the Court of Appeal’s ruling was appealed to the Supreme Court.
We will never know the jury's grounds for acquitting. Theoretically the grounds for acquittal were either (i) that the statements were not deemed to be defamatory, or (ii) that the statements were justifiable, and the woman had showed that the statements were true or that she had reasonable grounds for them. The second alternative would appear to be the likely one since the statements themselves were clearly defamatory.
Based on the grounds stated by the Court of Appeal, it seems as if its judgment could have been the same as the jury’s if the woman’s statements were made closer in time to the event and did not include crimes that did not relate to her.
The fact that the woman was convicted in one case but acquitted in the other even though they concerned similar statements relatively close in time about the same man causes uncertainty. For this reason, it would be desirable if the Supreme Court grants leave for appeal. Also, a Supreme Court judgment will provide valuable clarifications as to whether the Court of Appeal was correct in giving decisive importance to the aforementioned factors when deeming the statements to be non-justifiable.
