New whistleblower act challenges Sweden’s unique freedom of expression

Swedish freedom of expression and protection of expression is enshrined in two out of Sweden’s four fundamental laws – The Freedom of the Press Act and The Fundamental Law on Freedom of Expression. 

Anyone about anything at all

The freedom of expression makes it possible for anyone to anonymously give information for publication about anything at all to a journalist, editorial staff or an author. 

“Freedom of expression is there to secure information that individuals want to share anonymously can still get out. So it is protection that benefits society and helps oil the social machinery while throwing light on mismanagement and abuse. It is protection which helps Swedish authorities maintain a high level of trust,” Nils Funcke, an expert on Swedish freedom of expression, told the Nordic Labour Journal.

Nils Funcke, expert on the freedom of expression, at the Gothenburg Book Fair. Photo: Arild Vågen/ Wikipedia.

Criticism of the new proposed legislation 

Like other Nordic countries, Sweden chose to implement the EU’s so-called whistleblower directive. The new whistleblower act came into force on 17 November 2021. According to Minister for Employment Eva Nordmark, the idea was to “give all employees the right to sound the alarm about irregularities. This is important to the individual, but it is also an important part of a free and democratic society.” 

Some of the comments that the Swedish government got in a consultation process to the report “Increased safety for whistleblowers” centred on how the new legislation would relate to the freedom of expression in particular.  

The Swedish Media Publishers’ Association (TU) with more than 100 member companies, wrote that they considered the whistleblower directive to be important, but that it is “only complementing the constitutional right to freedom of expression and protection of expression” and that the whistleblower legislation must not “be expressed or interpreted in a way that excludes the freedom of expression and information enshrined in the constitution”. 

Civil Right Defenders, formerly the Swedish Helsinki Committee for Human Rights, underlined in their consultation comment that ”there is a need to clarify the relationship between the regulation of publication and the constitutional right to freedom of expression and the protection of expression”.

Criticism led to revised legislation

The Swedish Union of Journalists (SJF) was not part of the consultation but chose to send in an answer in any case. The Union had been monitoring the issue and knew that the outside world would be watching, expecting that it would still be possible to safely provide information without unveiling the source, Ulrika Hyllert, SJF’s President, told the Nordic Labour Journal. 

“We try to influence everything that has to do with the protection of expression, so it felt completely natural to present the Union’s views on this,” she says.

Legislators took onboard the collective criticism relating to the protection of expression, and the legal text now contains, as SJF proposed, a direct reference to the constitutional right.

The trade unions’ main criticism of the new whistleblower legislation remains, however, since the legislation turned out to be quite different to the 2016 whistleblower act.

“It was decided to introduce something completely new rather than build on what we already had, despite the fact that it would have been possible to include the good bits from the EU directive in the existing, well-functioning legislation. The new legislation is therefore completely unproven,” says Ulrika Hyllert. She had hoped for a more ambitious approach during the writing of the new whistleblower act.

Complex act

The criticism does not stop there, however. The new whistleblower act has been called complex, partly because it is far too voluminous with its 10 chapters and 60 articles, compared to the former legislation that had a total of 10 articles.

It was also criticised for containing terms like “in the public interest” without clarifying what that entailed. 

- It is unclear what the criterion "public interest" means. It is difficult for someone who wants to raise the alarm to determine what it is and we will not get any clarity on it until it is tested in court. There is also a risk of confusion with what we journalists call "public interest" when it comes to what is to be published and that is something completely different. It is unfortunate that a term that is so similar has been chosen, says Ulrika Hyllert.

The Civil Rights Defenders also have views on the term “in the public interest”. In their consultation comment they write: 

”If a person blowing the whistle is to enjoy the protection of the law, it should not be a prerequisite that the irregularity is in the public interest, in situations where the information does not pertain to EU law. Such a prerequisite risks undermining the legislation’s purpose.” 

There is an attempt to explain things in the Ministry of Employment’s “Questions and answers about strong protection of whistleblowers”. It says: “It is often in the public interest that irregularities are reported if the issues are serious.”

A risk to anonymity

Another criticism of the new whistleblower act is that the protection against reprisals from employers is linked to a demand. If a person wants to talk to the media, they should first report the issue to “an external reporting channel”, i.e. one of the government-appointed authorities that records, follow up and pass on the irregularity issue to the Work Environment Authority. If the person approaches the media first, they lose their protection. 

“The way the act stands now, you risk creating ambiguity for the individual. It is important to make it clear that those who want to report irregularities in the workplace to the media can do this without risking their anonymity. The journalist is responsible for not revealing their source and could even be held legally responsible if they do not do everything in their power to make sure the source remains anonymous,” says Ulrika Hyllert.

She does, however, see some advantages in the new whistleblower act. Like the fact that it covers more people, like contractors, trainees, voluntary workers and others. And the fact that it makes it compulsory for private companies to have a whistleblower channel and that there is reparation linked to the protection of whistleblowers.

A question of knowledge and democracy

In the end, it all comes down to improving knowledge in the workplaces about the new whistleblower act and freedom of expression, believes Ulrika Hyllert.

“When it is not clear what is what, it could become a problem for democracy. Nobody should fear reprisals when reporting irregularities, not when we know our freedom of expression is enshrined in two of our fundamental laws.”