Sweden: Supreme Court’s decision on search warrant for source’s electronic images in Aftonbladet Hierta’s editorial office

Malin Hurtig

On 16 June 2015 the Swedish Supreme Court suspended the execution of a search warrant of an editorial office. The Court amended the Court of Appeal’s decision and rejected the petition concerning the search of the premises. The Court ruled that the execution would not take place until further notice.

The Swedish newspaper Aftonbladet Hierta AB had received photos from a sender which depicted two men who could have been involved in a robbery in May 2015. The photos were transferred digitally to the newspaper for the purpose of publication by a source who wanted to remain anonymous. The newspaper published the photos but covered the two men’s faces. At the prosecutor’s request, the Swedish District Court appointed a search of the newspaper’s premises to search for and confiscate the uncovered pictures of the two suspected perpetrators.

The Court of Appeal did not amend the District Court’s decision. The newspaper then appealed to the Swedish Supreme Court against the Attorney-General’s request concerning the search of the its premises, and the decision of the Court of Appeal. The Swedish Supreme Court amended the Court of Appeal’s decision and rejected the petition concerning the search of the premises.

Swedish law provides a definite prohibition to confiscate written documents only in case the information in the written document contains protected information and the confiscation of that document would jeopardise the right to remain anonymous. Therefore, in the present case, the prerequisite for the confiscation of the photos would have been fulfilled if the requested photos had been produced on paper and did not contain other information apart from the picture itself. However, the photos were stored at the newspaper’s office in an electronic information carrier.

Since such electronic information carriers can contain a lot of different information units, there was a risk that irrelevant information would be confiscated and examined and that this information could contain protected data. Therefore, in this case it was important to evaluate the risk of protected data being revealed during a search of the electronic information carrier. A search of the premises may only be granted if these risks had been legally examined according to the rule of proportionality.

The Swedish Supreme Court came to the decision that in addition information which does not take written form, as well as carriers of information other than paper, fall within the prohibition of confiscation according to the Swedish legislation. According to the legislation, an absolute obstacle for a confiscation exists if a searched file or other searched information unit on an electronic information carrier could contain irrelevant but protected information. But, there is no obstacle for a search of the premises or confiscation of documents if no other information than the one searched for is available on an electronic information carrier.

It was not clear in this case which information carrier contained the transferred photos or other information units, and the information carrier could not be identified in advance. The possibility that irrelevant information which contains protected details can be exposed during a search and integrity aspects needed to be taken into consideration when doing the proportionality assessment that has to precede a decision concerning those coercive measures. The Supreme Court considered it to be a high risk that protected information about the person that transferred the information to the plaintiff and requested to be anonymous could be revealed during a search of the plaintiff’s electronic information carriers. In this case, the information concerned was of highly protected value and even though the Attorney-General had a strong interest in the photos for the investigation of a crime, the requirement of proportionality constituted an obstacle for the search of the premises. However, it was irrelevant to the case whether a prohibition of confiscation of the photos existed, since a prohibition of the search of the premises existed.

The verdict of the Supreme Court of 18 August 2015 (case no. Ö 3074-15) is available in Swedish language here.

Malin Hurtig, Wistrand Law Firm