The balance of the law on the peace of the maritime grave at the wreck of Estonia and the journalistic interest (the Court of Appeal for Western Sweden, B 5637-22)

Filip Jerneke and Stefan Widmark

Rättsfall | Sverige | B 5637-22 | 2023-03-31

The balance of the law on the peace of the maritime grave at the wreck of Estonia and the journalistic interest (the Court of Appeal for Western Sweden, B 5637-22) Filip Jerneke and Stefan Widmark Introduction In this case, two persons were convicted for offence against the law on the peace of the maritime grave at the wreck of the passenger vessel Estonia after diving close to and filming the wreck for the purpose of making a documentary film. In this context, the most interesting aspect is how the court draws the line between the peace of the maritime grave and the journalistic interest.

The balance of the law on the peace of the maritime grave at the wreck of Estonia and the journalistic interest (the Court of Appeal for Western Sweden, B 5637-22)

Filip Jerneke and Stefan Widmark

Introduction

In this case, two persons were convicted for offence against the law on the peace of the maritime grave at the wreck of the passenger vessel Estonia after diving close to and filming the wreck for the purpose of making a documentary film. In this context, the most interesting aspect is how the court draws the line between the peace of the maritime grave and the journalistic interest.

Background

As a result of the sinking of the passenger vessel Estonia in 1994, the Act concerning Protection of Peace of the Maritime Grave at the Wreck of the Passenger Vessel Estonia (“the Estonia Act”) was introduced in Sweden in 1995. The Estonia Act stipulates, inter alia, that diving and other underwater activities must not be carried out in the wreck or within a defined area around the vessel.

In 2019, a film crew conducted dives to and filming of the wreck. The filming material was then used in a televised documentary series. As a reaction to this, a prosecutor claimed that two individuals, who were a part of the film crew, had acted in violation of the ban on conducting underwater activities in the declared peace area of the wreck.

The prosecuted persons were convicted for offence against the peace of the maritime grave by the district court of Gothenburg. The judgment was appealed.

Decision

The first question that the Court of Appeal had to answer was whether the prosecuted persons had conducted the criminal act or not. From the statements of the prosecuted persons, it appears that they were aware that they were conducting underwater activities within the defined area around the vessel and that it was also their intention to conduct such activities. In addition, the court stated that they had acted with criminal intent. As a consequence, the court found that the prosecuted persons had conducted the criminal act.

After finding that the Estonia Act was applicable in the present case, even though the vessel was German flagged, the court moved on to assess the question of discharge from liability regarding the publicity interest.

In accordance with the Freedom of the Press Act, all persons have the right to procure information on any subject whatsoever, for the purpose of publication in print. However, the freedom of procurement does not mean that the procurer has the right to procure information through criminal acts. Consequently, the procurer can be held accountable for the methods the person has used when procuring the information, provided that the method is unlawful. Hence, the freedom of procurement does not protect the method of procuring the information.

The method that was used to procure information in the precent case, diving and filming in the area of the maritime grave at the wreck of the passenger vessel Estonia, is punishable pursuant to the Estonia Act and thus is not protected by the right to procure information.

Further, the prosecuted persons had alleged that the constitutional principles of the right to freedom of expression and information outweighs the purpose of the Estonia Act. As a consequence, the court needed to balance the interests protected by the Estonia Act against the interests protected by the freedom of expression and information.

The court stated that it could be argued that there was a legitimate journalistic interest in reviewing the sinking of Estonia, the subsequent investigation of the sinking and, as a result, also the wreck itself. The film crew’s review led to new government committees, changed legislation and new assessments regarding Estonia’s seaworthiness when the vessel was wrecked. The court held that these circumstances could indeed indicate that there was a legitimate journalistic interest. In addition, the most effective way to procure information about the sinking of Estonia was to dive and film the wreck.

However, the court stated, despite the abovementioned circumstances, that the underlying purposes with the Estonia Act outweighs the journalistic interest in the present case. The provisions of the Estonia Act have been passed to protect the peace of the maritime graves of the deceased and it cannot be protected in any other way than to prohibit diving and other underwater activities within the defined area around the vessel. Thus, the prosecuted persons were sentenced with fines.

Comment

The most interesting question in the present case is the balance of, on the one hand, the freedom of expression and the journalistic interest and, on the other hand, the peace of the maritime grave at the wreck of the passenger vessel Estonia. Unlike the Supreme Court’s case B 1471-13, which concerned the same type of balancing of interests, we assess that there was no other way to procure information on how the Estonia sank than to dive and film the wreck. Additionally, the film crew’s review led to, inter alia, new government committees, and changed legislation aiming at e.g. a broadening of the room for further investigation of the shipwreck, which is also a clear indication that the journalistic interest was relevant. Against this background, our view is that the journalistic interest was significant and that an opposite outcome would therefore have been well founded. Instead, as stated above, the Court of Appeal took the stand that the interest of the protection of the peace of the maritime grave outweighed the journalistic interest.

Estonia