Flashback has long been controversial and has been seen by many as a haven, where threats, defamation, and xenophobia are allowed to flourish. Now, the founder and CEO of Flashback are being prosecuted at the Stockholm District Court for violating the law on responsibility for electronic bulletin boards, which, among other things, SvD has written about.
According to the indictment, Jan Axelsson has been grossly negligent and failed to remove obviously criminal messages from the Flashback website. The prosecution covers a total of twelve instances between October 2022 and February 2023.
Surprised
We are surprised by the prosecution. There is no general obligation in the law to monitor everything that is written, it would be unreasonable. What is required is an organization that can catch and delete illegal posts when 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 Internet.
It raises very interesting legal questions since the law is almost untested in Sweden. There is clearly room for further practice and guidance in the area, she says.
The court will assess whether the posts made are criminal, such as incitement to racial hatred. Another question the court will likely have to consider is whether Flashback meets the requirement to monitor the flow through its reporting function and moderators who follow discussions and take action when necessary.
There is no obligation to monitor every single message from the outset. However, some form of recurring control is needed. What is reasonable must be determined on a case-by-case basis, says Ängla Pändel.
May have implications
She believes that the verdict in the case may have significant implications.
Now, the boundaries of freedom of expression and how far responsibility for others' posts extends will be clarified, she says.
Nils Funcke, a journalist and expert on legal issues related to freedom of the press and freedom of expression, also predicts that the case may have consequences.
If there is a guilty verdict that stands in higher courts, it will make other actors need to think about their own supervision. It may require double the number of moderators, he says.
The trial is scheduled to take place in the Stockholm District Court in March 2025.
An electronic bulletin board is a platform where anyone can post messages and read or receive others' messages. This can be, for example, a group on Facebook or a thread on Flashback.
The person providing an electronic bulletin board is responsible for exercising the supervision over the service that "can reasonably be required" in view of the scope and direction of the business. They must also remove messages that are obviously criminal according to certain provisions in the Penal Code. Examples of crimes covered include illegal threats, incitement to racial hatred, and child pornography offenses.
Anyone who intentionally or grossly negligently violates the BBS Act can be sentenced to fines or imprisonment.
Source: Swedish Code of Statutes
The BBS Act was tried in Eskilstuna District Court in 2019 and appealed to the Svea Court of Appeal the following year. The administrator of the large Facebook group "Stand up for Sweden" was convicted and sentenced for not removing messages that obviously constituted incitement to racial hatred.
Source: Svea Court of Appeal
