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11.11.2015

Sweden: journalist and editors fined for buying a gun to show in a report just how easy it is

Christoffer Lundmark & Michael Plogell

The Swedish Supreme Court ("SSC") has considered a prosecution against a journalist who was accused of violating the Swedish gun law (“GL”). In 2007 the journalist had, in connection with a reporting assignment, purchased a gun on the illegal market. The SSC substantially evaluated the question at a hearing in March 2015 of whether the journalist’s purpose could affect the assessment of both responsibility and sanction of a deed that typically would be considered criminal. The background was briefly as follows …

Surpreme Court of Sweden The Palace of Bonde, situated right next to the House of Knights, is the current seat of the Supreme Court of Sweden. Photo: Ankara, Bondeska palatset June 2011, CC BY-SA 3.0)

In the autumn of 2010 there had been several high-profile shootings in Malmö, Sweden. These had caused a lively debate, and demands had been made by politicians and the police to restrict the legal regulation of weapons. Because of this, the chief editor of one of Sweden's largest newspapers decided to make a series of reportages about these developments. One of the reportages would highlight whether the statement in the debate – that it was easy to buy firearms in Malmö – was actually true. In order to write this reportage the chief editor, together with a journalist, decided that the journalist would try to buy a gun on the illegal market in Malmö. On behalf of the newspaper the journalist went to Malmö where he contacted the owner of an illegal gun. Then he followed through the purchase and went back to his hotel where he locked the gun in a safety box. After that he contacted the police, who picked up the weapon from the hotel after about an hour.

 

During the court proceedings the journalist did not question this course of events. The journalist, however, claimed that he could not be held responsible for his action on the following grounds. The charge that the journalist was in possession of the gun, was not a possession of a weapon in the sense alluded to in the GL. The journalist had none of the intentions that are stated in GL, since the purchase of the weapon was part of investigative work and should therefore be considered as a journalistic purpose with reference to the basic principles of freedom of expression and freedom of information. Furthermore the journalist stated that the media in a democratic society must be given a broad framework to depict society in the public interest. Therefore it needs to strike a balance between the interest in prosecuting crime and the interest of not restricting freedom of expression and freedom of information. The fact that the journalist followed through with the gun purchase in connection with the reportage regarding the existence of illegal weapons in Malmö must be considered as one of the penalty-free actions in the concept of social adequacy. The journalist also claimed that, if he were to be held responsible for the purchase, the court should refrain from punishment.

 

Initially the SSC examined the rules of possession of a weapon regulated in the GL. In the GL it is stated that a person who intentionally possesses a firearm without being entitled to or transfers it or lends a firearm to someone who does not have the right to possess weapons is sentenced to imprisonment. The SSC noted that the journalist’s charge for the possession of the gun was considered as such a possession that is referred to in the GL. The fact that the possession only concerned a limited time, that the gun was not purchased for the journalist's use and that the intention was to immediately transfer the weapon to the police was, according to the SSC, irrelevant. The journalist had the intention behind the action and thus it was a criminal act.

 

The SSC then evaluated the question whether the journalist’s journalistic purposes could lead to it refraining from punishment. The SSC emphasised that the purpose of the regulation of constitutional laws is to create good conditions for a free exchange of ideas, inter alia by enshrining the mass media's ability to obtain information for journalistic purposes. The SSC declared that it is important that state grievances and other matters of general interest can be highlighted in newspapers and other mass media. Often it is only through investigative journalism that serious irregularities can be detected.

 

Notwithstanding the Swedish Freedom of the Press Act and the Fundamental Law on Freedom of Expression, the SSC noted that the manner in which the information had been obtained could still be considered criminal and lead to responsibility. The SSC noted however, that there may be situations where it was possible to refrain from punishment for crimes committed for a journalistic purpose. Each and every one is, according to the European Convention on Human Rights ("ECHR"), granted the freedom to communicate information and the freedom to obtain information against the government. These freedoms may be restricted with respect to, among other things, public order and security as well as the prevention and prosecution of crime. Such restrictions must be acceptable in a democratic society and should never go beyond what is necessary, having regard to the purpose that has caused them.

 

If a court finds that a certain situation is contrary to these necessary provisions, the court is not, according to the SSC, entitled to apply the punishment of the provision. In this case the SSC considered that the question of preventing the uncontrolled possession of weapons is of major importance to the societal interest. The purpose of the reportage was, on the other hand, to examine the statement that it was easy to buy firearms in Malmö. The SSC alleged that this purpose could be highlighted in other ways. In the balance between the underlying interest of the Gun Law and the interest of not restricting freedom of expression and freedom of information, the interest of maintaining the purpose of the GL takes precedent. For this reason the SSC considered that the journalist could be held responsible for the purchase. The SSC also considered, invoking the same arguments, that the journalist could not avoid responsibility with reference to social adequacy.

 

Regarding the question of sanction the SSC considered that the crime was of a different nature compared to the kind of gun possession that the legislature principally had in mind when constructing the gun crime’s sanction (imprisonment). In this case the possession of the weapon waa maintained for a short period of time and the gun was purchased without ammunition. The journalist’s intention was to immediately hand over the gun to the police. According to the SSC there had not been any risk that the weapon would have been used in crime. Therefore, the SSC noted that the penalty value was low. There were according to the SSC sufficient grounds to deviate from the penalty of imprisonment.

 

The journalist was sentenced to an 80 day fine amounting SEK 530 (about EUR 56,53). The chief editor and one other person in a managerial position at the newspaper were also sentenced, but for accessory to gun crime, each to an 80 day fine amounting SEK 1000 (about EUR 106,67) respectively SEK 670 (about EUR 71,47).

Christoffer Lundmark & Michael Plogell: Wistrand Advokatbyrå, Göteborg, Sweden

 






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