Flashback has long been controversial and regarded by many as a haven, where threats, slander and xenophobia can also flourish. Flashback’s founder and CEO are now being prosecuted at the Stockholm district court for violating the law on liability for electronic bulletin boards, which among other things SvD has written about.
According to the lawsuit, Jan Axelsson has been grossly negligent and has not removed obviously criminal messages from the Flashback page. The indictment covers a total of twelve occasions during the period October 2022–February 2023.
Surprised
– We are surprised by the prosecution. There is not a general obligation in the law to check everything that is written, that would have been unreasonable. What is required is an organization that can catch and delete illegal posts once they are reported. The problem was that these posts were not reported, says Jan Axelsson’s lawyer Nils Hillert.
Ängla Pändel is a lawyer and chairman of the Institute for Law and the Internet.
– There are very exciting legal issues that are brought up to date because the law is almost untested in Sweden. There is clearly room for further practice and guidance in the area, she says.
Ängla Pändel is a lawyer and chairman of the Institute for Law and the Internet. She welcomes a trial in court. Photo: Mannheimer Swartling
The court will assess whether the posts that have been made are criminal, for example constitute incitement against a group of people. Another question that the court will likely have to decide is whether Flashback meets the requirement to keep track of the flow through its reporting function and moderators who monitor the discussions and act when necessary.
– As a starting point, there is no obligation to check every single message. However, some form of recurring control is needed. What is reasonable must be decided on a case-by-case basis, says Ängla Pändel.
Can be significant
She believes that the verdict in the case may have great significance.
– Now the limits of freedom of expression and how far the responsibility for other people’s posts extends, she says.
Nils Funcke, journalist and expert on legal issues surrounding freedom of press and expression, also predicts that the case may have consequences.
Nils Funcke. Archive image. Photo: Janerik Henriksson/TT.
– If there is a conviction that stands up in higher instances, it will mean that other actors need to think about their own supervision. Maybe twice as many moderators are needed, he says.
The trial is scheduled to be held in the Stockholm District Court in March 2025.
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Flashback turned 40 last year – so the site has changed the public conversation. Photo: Elizabeth Watson/SVT
Facts: The Electronic Bulletin Board Act (“BBS Act”)
An electronic bulletin board is a platform where anyone can add messages and read or receive messages from others. For example, it could be a group on Facebook or a thread on Flashback.
The provider of an electronic bulletin board is required to exercise such oversight of the service as may be “reasonably required” having regard to the scope and direction of the business. This person must also remove messages that are clearly criminal according to certain provisions of the Criminal Code. Examples of crimes that are covered are illegal threats, incitement against ethnic groups and child pornography crimes.
Anyone who intentionally or through gross negligence violates the BBS Act can be sentenced to a fine or imprisonment.
Source: Swedish constitutional collection
Facts: Previous charges
The BBS Act was tried in the Eskilstuna District Court in 2019 and reviewed in the Svea Court of Appeal the following year. The administrator of the large Facebook group “Stå upp för Sverige” was convicted and sentenced for not having removed messages that clearly constituted incitement against ethnic groups.
Source: Svea Court of Appeal