What was wrong with the previous law?

Sweden’s previous espionage law only covered Sweden’s national security, while the new law expands this to cover information that could harm Sweden’s relations with other countries or international organisations. Ruotsi said that Sweden’s last government, together with the then opposition parties, had felt that Sweden’s current spy law was too narrowly drawn, and also was less extensive than those of many of the country’s international partners.  

“What it aims to do is to encompass situations, for instance, where Swedish Armed Forces are working within UN peacekeeping operations, and classified information is divulged, which might harm the peacekeeping operation or other participating countries’ national interests, but not Swedish national interest,” Ruotsi said.

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Under Sweden’s existing laws, leaking information in this sort of scenario might be considered “divulging classified information”, but that he said is only a relatively minor crime.

Under the new law, it will become a more serious offence, with a maximum prison sentence of eight years for “aggravated foreign espionage” and four years for “foreign espionage”. 

Ruotsi said that the law had been in preparation for six to seven years and had nothing to do with either Sweden joining Nato, or with the decision by the Swedish diplomat Anders Kompass to blow the whistle in 2014 about a report into child sexual abuse carried out by French Peacekeepers in the Central African Republic between December 2013 and July 2014. 

Kompass was then field operations director at the Office of the United Nations High Commissioner for Human Rights (OHCHR), and is now ambassador to Guatemala. 

“We can be fairly sure that this has nothing to do with the Anders Kompass situation,” Ruotsi said “I think it’s more of a reaction to Sweden being more involved at the international level in UN missions and things like that, and that there is increased international involvement with the Swedish Armed Forces.” 

How does the new law change the constitution?

Rather than a single written constitution, Sweden has four constitutional laws. The new law changes two of them: the Freedom of the Press Act and the Fundamental Law on Freedom of Expression, so that sharing secret information that damages Sweden’s relations with another country is illegal.

In order to criminalise an act of speech – for example, divulging national security secrets – that change in the criminal law needs to be mirrored in a change to the constitutional Fundamental Law on Freedom of Expression. 

Similarly, in order to criminalise the disclosure of information obtained through espionage, changes need to be made to the constitutional Freedom of the Press Act. 

“They are basically just mirrors of the criminal code, so if you want to make something criminal to say in a newspaper or on TV, then you have to criminalise it both in the criminal act and in those two constitutional media laws,” Ruotsi explains.

Is it concerning that the constitution is being changed?

Ruotsi said that because changing the Swedish constitutional laws requires a vote either side of an election, the four constitutional laws tend to undergo significant changes after every general election.

“They have a specific, very detailed nature, and they need to be kept up to date,” he said of Sweden’s constitutional law. “So there are changes every four years, but it’s not very common that you introduce a new crime or a new criminal sanction.”

Are there any good reasons to be worried about the new law?

One concern around the changes to the constitution is that they may make sources less willing to speak to the media or to pass information about critical matters on to journalists.

While the preparatory work for the new law does include provisions for the sharing of information that is of value to the public, for sources with sensitive information about Sweden’s dealings with other countries, the fear of what Ruotsi calls “criminal sanctions” may compromise their willingness to speak with journalists and with the press.

The law includes what Ruotsi calls a “public interest override” that states that publications or leaks that are “defensible” should not be prosecuted under the law. 

Even though he concedes this is “phrased a lot more vaguely” in the Swedish law than it could be, he argues that the preparatory work for the law makes it clear that this is intended to protect whistleblowers and investigative journalism.

“If you look at the preparatory works, it’s quite clear that they mean to exclude from criminal responsibility things that are of value to the public and in particular the media,” he said. 

“It’s somewhat unclear how this new law will be interpreted, but it’s obvious that the purpose of the law is not to criminalise the Anders Kompass situation, it’s to make sure that if we have Swedish military personnel or other civil servants working abroad on international missions and they turn out to be spies, that we can sanction them. That’s the main idea.”

By Shandana Mufti and Richard Orange