On the 3rd of March 2021, the Swedish supreme court ruled that the musician and rapper Frej Larsson would not be convictedfor threatening a public servant in his song “Då ska hon skjutas” (Eng.: “Then, she will be shot”). The song includes explicitly threatening lyrics about specific police officers, presented in an exaggerated manner which is common for rap-music. According to the judges of the Supreme Court, the lyrics in question cannot be regarded as an actual threat of violence because of the genre of the song, and the importance of protecting freedom of speech.In Sweden, it is a ruling that undoubtedly has had a major impact on the judicial view on freedom of expression as it relates to lyrics and songwriting.
In another part of Europe, namely Spain, the legal view on such expressions within lyrics seems to be quite different. Here, the rapper, poet, writer, and political activist Pablo Hasél was jailed on Tuesday the 16th of February 2021for writing lyrics that, according to the Spanish special court Audiencia National, broke the law. Pablo Hasél was charged with a €30 000,- fine and a prison sentence for “insulting the crown, insulting the police, and glorifying terrorism”.
Although these are two very different cases, they also have a lot in common. So what conclusions are there to be drawn about the differing views on freedom of expression in music in these two European democracies?
The case of Frej Larsson
Frej Larsson is a Swedish rapper and musician. Since his first album release in 2003, he has released over 20 albums, mostly within the genre of rap, hiphop, electro and bitpop. His lyrics are oftentimes abrasive and intended to offend those who Larsson considers to hold power in society. Larsson’s discography includes songs like “Snutjävlar” (Eng.: “Fucking cops”), which critiques the protection of minorities in Sweden, and songs like “Martin Timell” (name), a song that describes the Swedish media personality Martin Timell as a rapist. In this case, the allegations that were put forth against Timell by a coworker of his, were not backed up by enough evidence for him to be convicted of such a felony. Hence, Timell was formally charged with rape in March of 2018, and subsequently acquitted in the Swedish court of appeal on 8th of June 2018.
The song for which Larsson was tried in the Supreme Court was written in 2019, as a response to a police-strike against a party and concert hosted by the artist. The song includes lyrics that repeatedly suggest that the police officer Annika Ljung deserves to be shot and killed for ordering and publicly defending the strike in the media. The song even suggests that Annika Ljung deserves to die of cancer. Larsson alsopublished a post on Instagram, in which the artist made the claim that the police-officer in question deserves to be skinned. For this, the artist was taken to court. After having been acquitted in the District Court of Stockholm, the prosecutor appealed the decision to the court of appeals, in which Larsson was convicted of threatening a public servant, and subsequently charged with a 14 000 SEK fine. Larsson appealed the decision again to the Supreme Court, where Larsson was acquitted of all charges. In this ruling, the Supreme Court determined that within the genre in which the rapper is active, such ambiguous metaphors and rhetorical exaggerations are not uncommon, and should therefore not be seen as a genuine threat to Annika Ljung.
The case of Pablo Hasél
When it comes to Pablo Hasél, the situation is slightly different. In Spain, Hasél was convicted and got a two-year prison sentence and a fine of € 30 000,- € for insulting the crown and insulting the police. He was also convicted of the offence ‘glorification of terrorism’, for which he was sentenced to seven months imprisonment. According to the charges put forth by the prosecutor, the incriminating insults and glorifying statements were expressed in the lyrics to the song “Juan Carlos el Bobón”(Eng.: “Juan Carlos the Clown”), and in a total of 64 different tweets that were posted on the artist’s twitter account. The song in question includes lyrics that are highly critical of the monarchy and Spain’s former king, Juan Carlos I, and lists some of the main controversies that the king has been involved in. Aside from these unflattering remarks, Hasél also draws parallels between the royal family and parasites, gangsters, and thieves. The 64 tweets that were also put forth by the prosecutor, include statements like the following:
On the 30th of March in 2015, Pablo Hasél wrote as follows: “Nazi-police even torture in front of cameras.”
In February of 2016, Hasél posted the following tweet: “Policemen kill your son, go unpunished and then beg for money.”
Lastly, on the 8th of June in 2016, the artist wrote: “The police are killing us with total impunity: Iñigo Cabacas, immigrants etc. But Pablo Iglesias says they protect us.” In other tweets, Pablo Hasél also expressed sympathy for the Communist Party of Spain (PCE(r)).
Freedom of speech throughout Europe
Regarding these two cases, the national courts of Spain and Sweden reached radically different conclusions concerning the relation between freedom of expression, music, and threats. This is curious to say the least, since both Sweden and Spain have both ratified the European Convention on Human Rights (ECHR); a convention that is referenced in the reasoning from the Swedish Supreme Court. Article 10 in the ECHR states that freedom of expression is a fundamental human right in a democratic society:
Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
It is clear that the courts of these two nations utilize the articles within the ECHR in very different ways. With this in mind, it is certainly relevant to pose the question of whether the ECHR, and other conventions, risk losing their meaning when they are applied within national courts? Perhaps our understanding of these conventions are so influenced by our culture and our national judiciary to such a degree that they become mere platitudes.
It is also relevant to ask whether or not our European self-image as democratic states that protect individual freedoms and human rights is entirely accurate. Maybe there is still more to do both outside of- and within, Europe that will strengthen freedom of expression as a fundamental right for all citizens of the world.