Semikonstitutionellt mastodontverk eller kortfattat principstadgande? Om formerna för den svenska tryckfrihetsrättens reglering

Sammanfattning: From a continental point of view the Swedish regulation concerning the freedom of the press may appear rather peculiar, since a considerable number of the detailed rules is found at the highest level of the national hierarchy of legal rules - i.e. Grundlagen. In foreign legal systems the freedom of the press is normally stipulated in a very concise way in the constitutional act while the rules regarding the more specific matters are found in bodies of law belonging to the lower levels of the law hierarchy. This aspect, which makes the Swedish constitutional system rather unique has existed as a significant component of the Swedish legal system since the rise of the modern Swedish form of government, which took place in 1809. The purpose of this master thesis is, at first, to seek for an explanation to the question why the Swedish press regulation once upon a time was made so detailed at the highest level of the hierarchy of rules. Further this thesis aims to describe how the Swedish model of press regulation has been evaluated, criticized and praised during nearly 200 years. In the final chapter the described Swedish regulation method will be discussed in the light of a recently published propose from a government committee, which has taken into consideration the possibility to abolish the detailed regulation at the highest law hierarchy level and replace it with a constitutional regulation on the pattern of a more continental regulation model. Regarding the first question, this thesis at first describes that the detailed constitutional press regulation can be understood as a result of a reaction against the Gustavian regime. During those years of increasing autocracy the government had introduced extensive restrictions on the rights which where stipulated in the first press act from 1766. With the era of oppression in fresh mind, the founding fathers of the 1809-constitution became eager to regulate in detail all the matters of importance for the press. Since the freedom of the press was considered to be a cornerstone in a free society the rules where placed in the highest class of the hierarchy of rules. This thesis also describes that the knowledge of how to systematize the legal system was rather underdeveloped in Sweden during the 1810-ies and I argue that this fact probably affected the shape of the Swedish constitution. In addition this paper gives an account for the aspect that the Swedish constitution ever since 1809 has been a relatively instable kind of rule category. During the course of the years the Swedish press act has been object for a large number of amendments. The press act from 1810 was rapidly renewed in 1812 and this event shows that the Swedish constitution at this time had practically not gained any status that can be described as permanent. The fact that the Swedish constitution had a rather instable character from the beginning may have affected the degree of detailedness in the way that the legislator did not had any doubt to adopt the detailed regulations in the highest class of norms, as the real starting point was that the rules could be easily modified by making constitutional amendments. The Swedish model of press regulation became subject for a vivid parliament discussion during the 1850-ies, since the government had put forward a propose to dramatically reduce the large number of constitutional rules concerning the freedom of the press. The government bill became dismissed by a vast majority of the parliament members since it was generally considered that the subject was an essential matter for the free form of government and that the rules thus should not be placed elsewhere than in the Swedish constitution. It was also expressed that a concise paragraph in the constitutional text could easily be circumvented by the legislator by issuing restricting rules in ordinary laws. During the late decades of the 1800-century and early 1900-century some rules were excluded from the freedom of the press act. For example the rules concerning copyright law was removed from the Swedish constitution in 1876, since it had been considered that copyright law should be regarded as a matter of civil- not constitutional law. The example shows that the awareness about law systematization had increased during the 1800-century. In a commission report released in 1912 the possibility to move the regulation regarding press crimes from the Swedish constitution to the ordinary criminal law was taken under consideration. However the political views on how to decide the right balance between legal and illegal use of the printed word was considered to be subject for opportune political swings and thus the idea was dismissed by the commission. In 1940 a parliamentary bill was raised that contained a proposal resembling the one that had been raised by the government in 1854. This time it was argued that the rigid form of regulation was not suitable for that kind of detailed rules which had been placed in the press act. It was argued that those detailed rules on the constitutional level could not be adjusted easily enough when needs of adjustment occurred. At the same time a parliamentary bill was put up that contained a propose on making the process of constitution changing faster and less complicated. The proposals in those two parliamentary bills gives together indirectly some idea about the complicated character of the matter this thesis deals with. They illustrates together the dualistic character of the subject&semic The Swedish constitution is remarkably detailed, but what can be said about the constitutional stability? In 1949 the press act from 1812 was superseded by a new TF. The detailedness in the new freedom of the press act did not differ much from its forerunner. According to the general political opinion in the late 1940-ies the freedom of the press was too important to be stipulated elsewhere than in the constitution. In the preparatory works it was also argued that the Swedish regulation model had pedagogical advantages in the sense that most of the rules concerning the press was made clear in the same body of law. During the whole post-war period the Swedish model of press regulation did not became much questioned by the legislator. In fact there are circumstances that proves that the regulation model was considered favorable even in the later decades of the 1900-century. In 1991 a new constitutional act, the freedom of speech act (YGL) came into force. Since the new constitutional act showed great similarity with the press act (i.e. it was equal regarding the detailedness) it is sure that the legislators opinion about the Swedish regulation model was still unchanged. The Swedish constitution is still today regulating the freedom of the press in great detail, however this thesis argues that it can be discussed weather the Swedish constitution differs much enough from the ordinary law institute to be fairly mentioned as a real constitution. Regarding that the Swedish constitution has been subject for a large number of amendments during the years, it may be argued that the Swedish constitution is a rather volatile construction not having much equal with the constitutional concept in a continental notion. With this aspect in mind, one can maybe reach a partial explanation to the question how the Swedish constitution could have remained so detailed during the years without having been much questioned. The thesis argues that there exists a certain connection between the detailedness and the changeableness of the Swedish freedom of the press act. Some preparatory works from the 1970-ies clearly shows that the detailedness has refrained the legislator to make the Swedish constitution more difficult to amend. For example the possibility to make the referendum become an obligatory part in the constitutional amendment process was excluded. It was concluded that as long as there are so many details found in the constitutional texts, it simply can´t be reasonable to complicate the lawmaking process of constitutional amendment. The commission report from 2006, that has taken under consideration the possibility to abolish the Swedish regulation model, makes the idea from 1854 once again to a pressing issue. The question is weather the Swedish regulation method can be considered as reasonable taking in account the requirements the international collaboration puts on government. The commissions proposal seems not to be favored by many people and thus it can be assumed that the Swedish regulation model will not be changed in the near future. The commission report has however not taken in measure the duality of the question. In the closing chapter of this thesis I argue that there are good reasons to discuss the question about the future Swedish press regulation from a more constitutional point of view. More attention should be paid to the question about constitutional stability.