SOU 2024:75 – Personal data and the basic media laws

We have previously written about personal data that is published in search services here . The government  decided in 2023 to appoint a special investigator to review the constitutional protection of search services that publish personal data on the internet. On November 20, 2024, the report Personal data and media fundamentals (SOU 2024:75) came out, which is the result of the extensive investigation into how the constitutional protection for search services should be changed to strengthen the protection of personal integrity. The report marks an important step in balancing the principles of freedom of expression with the individual’s right to protection of their personal data.

In summary, the investigation (SOU 2024:75) proposes that the constitutional protection for search services that publish personal data should be limited in order to strengthen the protection of the individual’s integrity. This is done through a reassessment of the current rules for the publication of sensitive information and the introduction of new provisions in the Freedom of the Press Ordinance (TF) and the Freedom of Expression Basic Law (YGL).

The investigation’s proposal gives the legislator the opportunity to regulate the search services covered by the constitutional exception through special legislation. In addition, existing legislation and EU regulations will have significance for the actors covered by the exception. At present, this means that the EU’s data protection regulation and supplementary national legislation are applicable. Although these search services can meet legitimate needs, the investigation highlights the risks of intrusion into personal integrity.

The proposed constitutional amendments are proposed to enter into force on January 1, 2027. It remains to be seen how the proposals will develop, Delphi will closely follow the continued legislative process.

The investigation’s mission

The investigation’s mission has been to review the constitutional protection for search services that publish personal information about crimes, addresses, telephone numbers, marital status and other information about individuals’ personal circumstances. The goal is to strengthen the protection of personal integrity when this information is made public.

The investigation has also analyzed the need to limit constitutional protection for such search services and submitted proposals for necessary constitutional amendments, both in the constitution and common law, to strengthen the protection of personal data.

The investigation states, among other things:

  • Search services contribute to privacy violations by facilitating access to large amounts of personal data.
  • Criminals use search services to identify and select potential victims.
  • Public officials are exposed to a greater risk of harassment and threats.

While there are legitimate needs for these services, such as background checks or municipal use, it is necessary to balance this against the protection of individual privacy.

Proposal to limit constitutional protection for certain search services

In order to strengthen the protection of personal integrity, the government has considered that there is a need to re-evaluate the constitutional protection for search services that publish personal data. A concrete proposal is to incorporate new provisions that could limit this protection.

It is proposed that the TF and YGL be amended so that it will be possible to introduce a ban on the publication of personal data in certain cases to protect individuals from undue intrusions into their personal privacy.

Proposal for changes

The proposed amendment to ch. 1 § 13 of the TF and ch. 1 § 20 YGL means that it would no longer be possible to freely publish certain types of personal data if this data is arranged in a way that makes it searchable or collatable. In order for this restriction to apply, it is required that the publication entails special risks for undue intrusions into the personal integrity of individuals. When assessing this risk, among other things, the following factors must be taken into account:

  1. The nature of the personal data
  2. Extent of Disclosure
  3. The purpose of the disclosure

The proposed amendment aims to strike a fairer balance between freedom of expression and personal privacy when it comes to search services that publish personal information.

 The investigation’s proposal: A general constitutional exception

In order to strengthen the protection of personal data, the investigation proposes that a general exception be introduced in TF and YGL. The investigation presents three possible alternatives for how a constitutional exception can be formulated. All options mean that the constitutional protection of certain search services is limited, but to different extents:

  1. The scope of the existing exemption is extended

The first alternative is based on the existing regulation regarding the publication of sensitive personal data in ch. 1. § 13 TF and ch. 1 Section 20 YGL. The alternative means that the scope of application of these exemption provisions is expanded to include all personal data.

  1. An amended impropriety requirement

The purpose, extent and nature of the disclosure would be particularly taken into account when assessing whether it entails a risk of breach of privacy.

  1. Exceptions for all personal data processing that does not take place for journalistic purposes, etc

The exception would apply to all personal data processing that does not take place for journalistic purposes or for academic, artistic or literary creation. In this option, the exception does not target search services. Instead, the purpose of the personal data processing is solely decisive for the delimitation.

In light of the above, the inquiry proposes that the constitutional exception should be designed according to alternative 2, which involves a changed requirement of impropriety. The exception shall apply to data collections that have been arranged so that it is possible to search for or compile personal data and only cover cases where there are special risks of undue intrusion into personal integrity. This option is judged to be the most balanced, as it protects freedom of expression and at the same time deals with the problems identified.

Option 3, which would involve a more extensive constitutional exception, is considered too far-reaching because it would affect more businesses than those that are most problematic from a privacy point of view. The risk of circumventing the exception is assessed to be low even in option 2, despite a greater discretion for the law enforcer. The investigation considers that an exception that is too narrow could lead to businesses that should be protected by freedom of expression risking being hit by the exception.

This article was written by Associate Ara Haydar .