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Sweden: Supreme Court Rules Live Broadcast of Rape Is Aggravated Defamation but Not Violation of Duty to Report Ongoing Rape

(Aug. 8, 2018) On July 2, 2018, the Swedish Supreme Court ruled that a man who had filmed an ongoing rape and broadcast it on Facebook Live was guilty of aggravated defamation (grovt förtal) but not of the crime of failure to report a rape. (Högsta domstolen [Swedish Supreme Court], Case No. B 3552-17 (July 2, 2018), Supreme Court website.) The prosecutor had initially charged the man with failure to report an ongoing rape, aiding in the rape, and aggravated defamation. (Id. ¶¶ 3–4.) Failure to report an ongoing rape is a separate crime in Sweden. (6 kap. 15 § Brottsbalken (BrB) [CRIMINAL CODE], Swedish Parliament website.)

Background

On a night in January 2017, one woman, incapacitated because of alcohol and drug consumption, was consecutively raped by two men while a third filmed and streamed the incident. (Case No. B 3552-17, ¶¶ 1–3.) Subsequently, both the District Court and the Appeals Court convicted the third man of failing to report the crime and of aggravated defamation, but not of aiding in the rape. (Id. ¶¶ 6–8.)

Supreme Court Holding

The Supreme Court found that because the prosecutor had initially prosecuted him for involvement in the crime, it could not also charge the man with failure to report the crime in the alternative, as fear of being charged with an ongoing crime is a legal defense against having to report it. Thus, the Supreme Court held that because the man was charged with aiding in the crime meant he could not be charged with failure to report it. (Id. ¶¶ 15–16.)

Aggravated Defamation Defense

The defendant had argued in defense against the aggravated defamation charge that the broadcast of the rape on Facebook Live was protected by his constitutional rights to broadcast under the Yttrandefrihetsgrundlagen (YGL)—The Fundamental Law on Freedom and Expression. If deemed a constitutionally protected broadcast the action could not have resulted in a conviction of aggravated defamation. Under Swedish law, some broadcasts by private citizens are constitutionally protected. To be constitutionally protected a broadcast must be directed to the public and be viewed as “a program” as defined in the Web Broadcast Rule. (Id. ¶¶ 21, 26; 1 kap. 6 Yttrandefrihetsgrundlagen (YGL) [Fundamental Law on Freedom of Expression], Parliament website.)

The Supreme Court found that in order for a broadcast to constitute a broadcast “program,” the broadcast needs to have a thematic purpose and that not all spontaneous broadcasts could be described as programs. In this case the live streaming on a closed Facebook page could not be considered a program and was thus not constitutionally protected. Accordingly, the broadcast could be considered as aggravated defamation. (Case No. B 3552-17, ¶¶ 28, 29, 32.)

Sentencing

The Supreme Court ruled that the man should be sentenced to four months’ imprisonment, as he had committed the crime while on probation. (Id. Domslut & ¶ 36.)