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– I don’t think the public should come in and take sides in a conflict like this. But the main rule is that everyone can initiate their own action, that is, the legal representative can initiate individual proceedings against Ebba Busch, says Nils Funcke.
Prosecutor Anders Jakobsson decided today to initiate a preliminary investigation against the leader of KD due to his post on Facebook about the dispute over the house in which he is located. In the post, he addresses the legal representative of the seller of the house and describes him as a criminal.
The prosecutor says that the preliminary investigation aims to clarify whether a crime has been committed that is part of the so-called public process, which applies to most crimes. But precisely the crimes of defamation and insult, or the so-called crimes of defamation, do not belong there.
They are usually carried out through individual trials where the person who has been appointed himself for his action, although public trials through prosecutors in defamation cases have become more common in recent times.
– You shouldn’t have started a preliminary investigation, says Funcke about the prosecutor’s decision.
– Now society as a prosecutor is taking sides with this legal representative, and I do not think that society should do that. I don’t think there should be a blanket prosecution when it comes to defamation cases that are not very painful cases. It could, for example, involve young people under the age of 18 who are exposed to slander, or that a police officer or other official is subjected to slander in their practice, it continues.
Funcke believes that the representative is a lawyer and therefore must have a good ability to take his own action.
There are exceptions in which a prosecutor can take action on the matter. Seven years ago, the law on defamation offenses was amended. Before July 1, 2014, prosecutors can prosecute if the crime for “special reasons” was deemed necessary from a public point of view. However, the requirement has been removed for special reasons.
Mårten Schultz, a civil law professor who heads the Internet and Law Institute, came out early and commented that Ebba Busch’s post may constitute libel.
– The information that someone has committed a crime is like a red light, if they are involved in the type of law that I am doing.
“Well received in the mail”
What is “requested from a general point of view” is largely up to the individual prosecutor to judge. However, there are some guidelines that have been developed into a manual. They are, for example, if the information has been widely disseminated, if it is gross slander or if the information refers to sexual abuse.
– And then there is a special headline that points precisely to the dissemination of information about previous crimes on social networks. It emphasizes in particular that it is something that can be taken seriously, and it is even clearer when it comes to allegations that someone has previously committed a sex crime, says Schultz, continuing:
– Therefore, the examples given in the manual for prosecutors work very well in these positions.
The fact that Ebba Busch is a public figure does not affect the valuation, however, its publicity and platform contribute to the dissemination of the post.
– But despite the fact that a preliminary investigation has been initiated, the starting point remains that prosecutors do not prosecute. So this doesn’t have to mean there will be any prosecution, says Schultz.
If the prosecutor closes the preliminary investigation, the representative can still choose to initiate an individual prosecution or to pursue the matter as a civil case.
Defamation and public prosecution
Defamation offenses, such as defamation and insult, are generally not subject to public process, meaning prosecutors file charges. However, there are exceptions:
If the offense is directed at a person under the age of 18 or if the plaintiffs report the offense to the prosecution, the prosecutor may press charges if it is considered generally necessary and the charge relates to:
1. serious calumnies and slander,
2. insulting someone in or by the exercise of their authority;
3. insulting someone by reference to their race, color, national or ethnic origin or creed; or
4. Insult someone by alluding to their sexual orientation.
Before July 1, 2014, it was the case that the crime for special reasons would be considered necessary from a general point of view. However, the requirement has been removed for special reasons.