Julian Assange, the public face of the secret-sharing site WikiLeaks, has recently been spending a lot of time in Sweden. And given a recent investigation of rape charges against him, he may not be going anywhere else for awhile.
While that courtroom drama plays out, another Swedish legal issue—one that could have great consequences for WikiLeaks’s reputation and ability to protect its sources—is looming.
WikiLeaks has long advertised that portions of its operations, especially its key submission and publication servers, are based in Sweden in order to take advantage of the country’s constitutionally established source protection laws. But Swedish legal experts say that, by not registering with the state, WikiLeaks has not ensured it is entitled to the full force of the laws—and beyond that, that the site has misstated their strength and application.
Swedish laws around source protection are described in the Freedom of the Press Act and the Law on Freedom of Expression, two of the nation’s four fundamental laws, which together make up the country’s constitution. As in the U.S. constitution, no other law or act of the state is allowed to infringe on the rights described in fundamental laws.
These laws forbid what is routine in the United States. For example, government entities cannot investigate or even ask about the identity of an information leaker presumed to be on their staff, unless the leaker is suspected of a national security crime like treason, or of knowingly leaking a properly classified document.
Swedish law also offers an unusual protection to sources in and outside of government. Unlike reporter’s shield laws—which, in the United States, offer journalists some protection from refusing to comply with a subpoena—Sweden’s Freedom of the Press Act, whose origins trace back to 1766, actively forbids journalists to reveal a confidential source.
“It’s a rather old tradition of making sure that people can trust the press,” says Anders Olsson, a Swedish journalist who specializes in free speech and media law issues. “The reasoning behind it is to see that secrets that are kept in society that shouldn’t be secrets are actually dragged in the open.”
It’s very rare for journalists to fall penalty for revealing a confidential source. Swedish journalists feel the same code of honor against divulging a source as any of their international colleagues, and know their careers would likely be over if they did. The few prosecutions that are brought are usually the result of mistakes or miscommunication, perhaps where one member of a news team didn’t realize that a certain source had only come forward confidentially. A jail sentence of up to a year is possible. In practice, only fines are assessed.
And there are exceptions. For instance, in cases of high treason, or where a source intentionally disclosed classified information, journalists can be required to reveal their sources, thereby waiving any legal penalty that would otherwise apply to the reporter. (Of course, any reporter could personally choose to face sentencing rather than divulge a source.)
In addition to the journalist’s obligation not to breach confidentiality, prosecutors and other government actors are also restricted against making inquires into the identity of a source, except in extreme cases.
“In most cases, you have the right as a journalist, and are obliged as a journalist, to protect your sources,” says Arne König, the vice president of the Swedish Union of Journalists. “It has been a system that has been really recognized.”
These protections apply when the journalist involved works for a constitutionally protected outlet. The Freedom of Press Act originated before the age of broadcast media, so only regularly published printed periodicals are automatically covered. (The law’s Swedish name, Tryckfrihetsförordningen, is more literally translated as the Freedom to Print Act.)
Various amendments, revisions, and clarifying regulations have extended the act’s obligations and protections to properly registered radio, television, and websites. (The later are, somewhat quaintly, sometimes referred to as “databases.’)
But websites and other electronic media aren’t, like their print equivalents, automatically covered under the act, according to Kerstin Morast, the head of the Swedish Radio and Television Authority’s licensing division, which issues certificates and registrations to electronic outlets seeking constitutional protection.
“This is a strictly formal procedure. They are not looking at content—that would be close to censorship,” says Per Hultengard, legal advisor to the Swedish Media Publishers’ Association. “It’s pretty automatic.”