Together, these two trends—the increasing use of the effects test and increasingly
harsh damages for defamation—have given an incentive for European countries to
coordinate anti-defamation laws at the European level.
A 2007 amendment to the Rome II convention attempted to set regional standards
for the application of anti-defamation laws. The amendment instructed European
courts to obey, with some exceptions, the anti-defamation laws of the country in
which the damage occurred. 72
Surveillance
European countries have worked to coordinate security directives at the regional level,
yet these consensus directives have been criticized by outside groups as far too extreme. The 2006 European Data Retention Directive 73 prescribes surveillance on a regional level in the public interest. Because the directive has been transposed into the
national legislation of most of the EU member states, ISPs at the local level are required
to retain specific data pertaining to electronic communications to assist in tracking
down crimes and for future prosecutions. Such data can be collected through users’
activities, in particular Internet access, e-mail, and telephony, and can be retained for
a minimum period of six months but not exceeding two years. 74 The aim is to bring
about a common code of data retention in order to trace illegal content and the source
of attacks against information systems, and to identify those who use electronic communications networks for terrorist activities and organized crime. The data to be
retained do not concern the content of communications. Yet the directive has inspired
controversy within member states and was challenged recently at the German Constitutional Court. 75
Yet some countries are far exceeding the scope of surveillance allowed by the EU. In
March 2007, the Swedish government granted its national defense intelligence agency
the power to monitor all cross-border telephone calls and e-mail traffic, even without a
warrant. Various critics have raised privacy concerns about the plan, positing that the
proposal violates privacy rights and breaches EU law. Notwithstanding the criticism, in
January 2009 amendments to the Swedish wiretapping law entered into force, allowing
the National Defense Radio Establishment sweeping surveillance powers over online
activities. The new law allows special state agencies to monitor telephone calls and
Internet traffic, including the content of the traffic itself, which is outside of the scope
of the EU Data Retention Directive. In addition, the state agency could develop a plan
to search for sensitive keywords in transmitted messages and could even require monitoring content on servers outside the country’s borders. 76 A nongovernmental organization has already brought a case against the new law in the European Court of Human
Rights. 77 Sweden’s own national security police agency called the plan a violation of
‘‘personal integrity.’’ Such pervasive policies against online activities have triggered disapproval among big international ICT companies, some of which announced that they
288
Europe Overview
harsh damages for defamation—have given an incentive for European countries to
coordinate anti-defamation laws at the European level.
A 2007 amendment to the Rome II convention attempted to set regional standards
for the application of anti-defamation laws. The amendment instructed European
courts to obey, with some exceptions, the anti-defamation laws of the country in
which the damage occurred. 72
Surveillance
European countries have worked to coordinate security directives at the regional level,
yet these consensus directives have been criticized by outside groups as far too extreme. The 2006 European Data Retention Directive 73 prescribes surveillance on a regional level in the public interest. Because the directive has been transposed into the
national legislation of most of the EU member states, ISPs at the local level are required
to retain specific data pertaining to electronic communications to assist in tracking
down crimes and for future prosecutions. Such data can be collected through users’
activities, in particular Internet access, e-mail, and telephony, and can be retained for
a minimum period of six months but not exceeding two years. 74 The aim is to bring
about a common code of data retention in order to trace illegal content and the source
of attacks against information systems, and to identify those who use electronic communications networks for terrorist activities and organized crime. The data to be
retained do not concern the content of communications. Yet the directive has inspired
controversy within member states and was challenged recently at the German Constitutional Court. 75
Yet some countries are far exceeding the scope of surveillance allowed by the EU. In
March 2007, the Swedish government granted its national defense intelligence agency
the power to monitor all cross-border telephone calls and e-mail traffic, even without a
warrant. Various critics have raised privacy concerns about the plan, positing that the
proposal violates privacy rights and breaches EU law. Notwithstanding the criticism, in
January 2009 amendments to the Swedish wiretapping law entered into force, allowing
the National Defense Radio Establishment sweeping surveillance powers over online
activities. The new law allows special state agencies to monitor telephone calls and
Internet traffic, including the content of the traffic itself, which is outside of the scope
of the EU Data Retention Directive. In addition, the state agency could develop a plan
to search for sensitive keywords in transmitted messages and could even require monitoring content on servers outside the country’s borders. 76 A nongovernmental organization has already brought a case against the new law in the European Court of Human
Rights. 77 Sweden’s own national security police agency called the plan a violation of
‘‘personal integrity.’’ Such pervasive policies against online activities have triggered disapproval among big international ICT companies, some of which announced that they
288
Europe Overview