Possible defamation in the workplace / möjligt förtal på jobbet

Question

 Two weeks ago, my team and I organised an international scientific conference, attended by around 140 participants from more than 50 institutions, including journal editors. Just before my opening remarks, an anonymous email signed "Stockholm researchers" was circulated to the participants. The email contains an insulting epithet to describe misleading statements aimed to vilify and publicly discredit. The details described in the statements could only be accessed by specific managers. During the conference, several invited speakers approached and expressed their sympathy, questioning the authenticity of the content and labelling it as harassment. They also informed that this was not the first time such an email had been circulated, and that it had previously influenced the decision-making of at least one selection committee. The damage has been permanent and far-reaching, as the email reached potential employers, employees, reviewers, and editors. I am not familiar with internal regulatory mechanisms in such cases, and would appreciate your expert advice on the possible steps to take to address what appears to be an inappropriate behaviour. And whether a civil or criminal law claim can be applied. Thank you very much

Answer 1

Hello!

Thank you for turning to Lawline with your question!

As I understand your question, you have been the target of an email containing insulting information, distributed to others, aimed to discredit you in your professional role, and now you wonder how you can address this in a civil or criminal process.

There are a few different ways to handle this issue, and I will address them below. First, I want to point out the difficulty in translating Swedish law to English, especially when talking about different words and requirements in a statue, since it can be difficult to translate this into the exact meaning of the Swedish word, but I will certainly try my very best!

Freedom of speech

Firstly, I want to emphasize that in Sweden, we have a very far-reaching and profound right to freedom of speech, protected by the Swedish constitution, and it protects expressions and opinions to a great extent (2 kap. 1§ regeringsformen). Nevertheless, there are exceptions, but I want one to bear in mind this profound right as one tries to understand the extent of both the criminal and civil scope.

A criminal process

It is possible that the action you describe, constitutes a criminal offense, more particularly the offense defamation ("förtal" in Swedish). When someone identifies someone else as a criminal or as having a reprehensible way of life, or otherwise provides information liable to expose that person to the contempt of others, can be sentenced to a fine for the crime defamation (5 kap. 1§ 1st. brottsbalken/ the Swedish Criminal Code). This crime contains a requirement that the statement is spread to other people than the subject of the statement, which seems to be the case in your situation. It is also required that the statement is distributed with the aim to make a person the subject of other people’s disregard/contempt. This assessment is done objectively, not in accordance with the individual purpose, but in accordance with what kind of claims that are normally spread with the aim of contempt. Depending on the content of the e-mail, and the general purpose of this kind of statement, the requirements could be met here if the nature of the information is pure harassing. 

Moreover, it requires that the e-mail contains a certain qualified, negative statement, namely that it portrays the subject of the statement as a criminal, exceptionable or similar. Without knowing what the statement contained, it is hard for me to assess whether or not the statement meets this criterion. Usually, these are statements containing allegations of criminal behaviour, or other illicit or blameworthy behaviour such as cheating, racist or sexist behaviour, or statements about one’s research being stolen or if the research in some other way is majorly questionable ethically given the standards of the field in question. I can only speculate as to the content of the statement, but generally mere value judgements, such as a person being stupid or rude, or claims that someone is bad at their job and such, are not such statements that reaches the level of blameworthy comment that is protected by the law.

Nevertheless, even when the above-mentioned criteria are met, there are exceptions to when this kind of statement is not criminal. When a person is obligated to leave a statement, orif, in regards to the circumstances, it is justifiable to leave the statement, and if the information or claim is true or if the person leaving the statement had reasonable grounds for thinking it is true, one should not be convicted of the crime (5 kap. 1§ 2st brottsbalken/the Swedish Criminal Code). This means, that if the statement contains information that is justifiable to spread, for example information regarding a persons contribution or discriminating behaviour in the workplace or something similar that employers or the executives should know, and there are reasonable grounds for thinking the claim is true, it may not be criminal after all (e.g. RH 1996:61). Once again, without knowing what the e-mail in question contained, I cannot assess if it could be justifiable to spread the information. If it is a statement containing a claim of criminal activity outside the workplace, something personal that does not affect the work, or a claim of discriminating behaviour in the workplace, it is not likely to be justifiable to spread that kind of information at a conference, to other people than your executive. If the statement contains claims of unethical research or something similar that is of relevance to the conference, it may be justifiable, but again, depending on the exact information in the email, the purpose of it and the subject of the conference. But again, I can only speculate to this.

Another crime that comes to mind, is the crime harassment or molestation. A person who subjects another person to disturbing contatct or other ruthless conduct is, if the act is liable to noticeably violate that person's peace, could be guilty of harassment or molestation ("ofredande", 4 kap. 7§ brottsbalken). However,  due to only the circumstances that you have mentioned, I don't think that the requirements for this crime is met, firstly because it usually demands repeated contacts, secondly because the statement must contain something that is aimed to violate your peace. The criteria is usually met for repeted, unwanted contact via e-mail, phone or physical visits, but the more severe the message is, the fewer attempts of contact is needed. So if this was not the first time this person harassed you, or if the message is aimed to disturb your personal peace, it could be applicable. However, without a more extensive comprehension of the circumstances, I cannot say this for sure. 

Lastly, I need to inform you that the crime defamation is not usually something that the Swedish authorities investigate or prosecute, since it has the procedural character of an individual prosecution. This means that you most likely have to both gather the evidence and bring the case before the court, by yourself. The Swedish prosecutor’s office usually doesn’t handle these kinds of crimes, unless it is called for due to the public interest. But you can always file a police report regarding the incident and see if the police considers it “called for due to the public interest”. Regarding the criminal process, I also need to address the potential issue of Swedish criminal jurisdiction. From your question, I cannot comprehend whether the conference is held in Sweden or abroad. If it is held in Sweden, there should be no procedural problems with pursuing this in a Swedish court, but if the conference was held abroad, there could be some jurisdictional difficulties.

A civil process

The most preferable course of action is to address the situation in a civil process since there could be both material and procedural problems with the criminal process as mentioned above. With that being said, a civil process is not necessarily an easy course either.

If the person who distributed the e-mail works at the same place as you, your employer is obligated to investigate claims of harassment in the workplace, due to Swedish labour law, if the harassment is connected to any of the grounds of discrimination. These grounds are gender, sexuality and sexual identity, ethnicity, religion, disability and age. Furthermore, the employer is obligated to uphold a good work environment, and to prevent and remedy an unhealthy situation (3 kap. 2§ arbetsmiljölagen). Further responsibilities is regulated by the Swedish Work Environment Agency, for example here.

First of all, you should talk to your supervisor about what happened, especially if the person works at the same place as you. If your supervisor does not listen, or if you feel uncomfortable with talking to this person, you should talk to your union representative in your workplace, or if you don’t have one, you should contact the union for further guidance. If your supervisor does not listen, you could also contact the Swedish Work Environment Agency, and report that the supervisor does not fulfil its obligations.

There is some possibility of economic compensation for being the subject of harassment in the workplace. You could be entitled to economic compensation if the harassment is due to above mentioned grounds for discrimination, or if your supervisor does not act accordingly to investigate the situation.

The last way of action, even though it is quite difficult, is a civil suit for damages, in accordance with general damage law. A person who seriously offends someone else, through a criminal act against a person, their freedom or honour, should financially compensate this person (2 kap. 3§ skadeståndslagen). This claim is a civil case, in civil court, but is yet based on a criminal offense, much like the American version of a civil lawsuit for defamation. In this process, one does not have to prove beyond a reasonable doubt in criminal court, that a crime has been committed, since it’s a civil suit, but nonetheless one has to build the case upon a criminal act, such as defamation.

It is also possible, even if not to the extent of the cases in for example America, to sue on a more general claim. One who intentionally or out of carelessness causes another person personal or economic damage, shall compensate for the damage (2 kap 1§ skadeståndslagen). In theory, one can sue for economic damages if you for example lost your job or, due to the e-mail, is denied any other job, in terms of loss of income. But this possibility is very small, and the problem is also to prove that your economic damages are caused by the e-mail in a more or less direct way, which could be hard in practice. If you lose this kind of lawsuit, you also have to pay for your own and the opponent’s legal costs.

Summary and recommendations

In summary, there are a few different courses of action to take in your situation. Nevertheless, I have to be honest with you and say that I’m afraid that it is going to be hard to successfully proceed in court both in a civil and a criminal process. Without knowing more about the content of the e-mail, I cannot with certainty say if the action is criminal, but it might very well be, or if the content is harassment due to discrimination law or work environmental law.

The problem with a criminal process, is that the process is one that you probably will have to proceed with by yourself, and that could be hard and expensive if you lose. The same goes for a civil suit for damages.

Firstly, my recommendations to you are that you contact your supervisor or your union representative about the e-mail and demand an investigation and reprimands. You should also talk to your union representative about the next step. Secondly, you could report the person to the police for them to investigate and see if they find a public interest to pursue. It is first after these steps that you should consider whether or not to pursue this further by yourself in court, but if none of these recommendations concludes a satisfying outcome, I’m afraid it will be hard to take any legal actions against this person, and win. But this is of course up to you to decide!

If you need further investigation and guidance, you should contact a law firm that works with criminal or labour law. Our law firm could to some extent help you regarding civil cases and labour cases. If you wish to get in touch with our lawyers, you can contact me and I will mediate your information. You can reach me via [e-mail]

I hope this answer has been somewhat helpful for you, even if I couldn’t give you quite the hopeful answer that you maybe wished for.

Best regards,