CMS Expert Guide to Digital Litigation in Sweden

Sweden is working on improving and developing the use of modern technology in the justice system, both nationally and in the EU. According to the Swedish government, the aim is to be a world leader in the use of digitalisation, and for Sweden to be at the forefront internationally.

In general, the Swedish government has conducted extensive work to digitalise some aspects of the civil justice system. One aspect is the possibility to receive, process, send and preserve digital documents. A second aspect is the possibility to apply for a summons and provide powers of attorney online.

The act on Amendments to the Code of Procedure of 2020 (SFS 2020:918 - Lag om ändring i rättegångsbalken) introduced several provisions into the Swedish Code of Procedure (Rättegångsbalken) regarding the use of electronic documents, the submission of electronic evidence, the electronic signature of powers of attorney, judgments and applications for summons. For example, the amendment enabled an application for a summons to be submitted via the Internet.

Thanks to the development of technology, the possibilities for participation in a hearing via telephone or video have increased considerably. The use of videoconferencing has been available since the early 2000s. Although it is currently possible to use videoconferencing in court, it is not the general rule. However, during the COVID-19 pandemic the use of videoconferencing increased in the attempt to reduce the risk of infection.

Within the framework of the EU, member states are working together to improve and develop the use of modern technology in cooperation between the judicial authorities of member states.

In September 2019, the EU Council of Ministers adopted a five-year e-Justice strategy for 2019-2023, which includes three principles for e-Justice

• Digital by default, meaning that citizens and businesses should be able to communicate with public authorities digitally and that digital information should be the standard in both national and EU legislation;
• Once-only principle, meaning that information entered into a system can be re-used in compliance with data protection rules; and
• User-focused, meaning that apps, websites, tools and systems should be designed to be user-friendly.

In the context of the EU cooperation, e-Codex is a technical solution for the exchange of information in cross-border criminal and civil proceedings between member states. e-Codex enables information to be exchanged in a secure way, where IT systems at a national level should be able to communicate directly with each other without being routed through a central system. The use of e-Codex is also the standard when a court in a civil case or proceeding has requested the court of another member state to take a measure ancillary to the proceedings, such as the taking of an oath, the hearing of a party or the taking of a statement from a witness, expert or witness account or of a document.

Some digital and technical tools are currently available in Swedish litigation. For example, the possibility of signing documents and powers of attorney electronically and the possibility of submitting a summons via the Internet.

The possibility of signing documents, judgments and powers of attorney electronically was introduced in the Swedish legal system in the year 2021.The use of electronically signed powers of attorney for representatives is therefore an available option in Swedish civil procedure. This means that the authorisation can be drawn up entirely in electronic form. The signature must be an advanced electronic signature as defined in Article 3 of the EU regulation on electronic identification. The electronic signatures currently used in Sweden via e-identification services (e.g. the Swedish BankID) are generally considered to meet the requirements for advanced electronic signatures. (Chapter 12, Section 8; Chapter 17, Section 10; Chapter 33, Section 1a of the Swedish Code of Procedure).

The e-service used by the Swedish courts allows documents to be digitally signed and sent to the court or the board via the Internet. The e-service can be used for applications for summons, powers of attorney or documents in an ongoing case. In addition, it is also possible to order judgments and decisions via the e-service.

In accordance with Swedish law, a person who is to participate in a hearing before the court should appear in the courtroom or where the hearing is otherwise held. Parties, witnesses and other participants in a hearing may participate remotely by videoconference, except where this is found to be inappropriate. If there are grounds to participate remotely, the court may decide that the person who is to participate in a meeting may participate by means of audio or video transmission. In assessing whether there are grounds for participation by audio or video transmission, the court should consider in particular, among other things, the costs or inconvenience that would be caused by the need for the person to attend the hearing to be present in the courtroom (Chapter 5, Section 10 Rättegångsbalken).

For example, witnesses may be heard by telephone if it is appropriate to do so, taking into consideration, inter alia, the cost of having the witness appear in person in court and the importance of hearing the witness in person at the hearing. However, the main rule remains that the person who is to participate must be present in person at the court, although there is some degree of openness to the use of videoconferencing and other digital means.

Another possibility that falls under the topic of digitalisation is that parties will no longer automatically have to send paper copies of documents they submit to the court. Documents are now usually filed digitally and can be sent to other parties electronically. This means that a party will only be obliged to provide paper copies of a filed document if the copies are needed for transmission to another party. Furthermore, the obligation only arises if the court requests that paper copies should be provided. If the document can be sent to other parties in digital form, the court will not request paper copies (Chapter 33, Section 2 the Swedish Code of Procedure).

The Swedish National Courts Administration has also developed a system for the courts to be able to archive their cases and files electronically (i.e. an e-archive). This means that the possibility exists to store documents digitally. The capacity for the Swedish courts to store their documents digitally is part of the long-term work on structured information in digital original documents and digital files. The e-archive also makes archiving work more efficient. 

The use of the digital and technical tools mentioned above is not mandatory. For example, the possibility of using videoconferencing is not an option that the parties can decide upon themselves. Instead, it is up to the court to assess and decide whether, given the specific circumstances of a case, there are grounds for participation by audio or video transmission.

The possibility of signing documents, judgments and powers of attorney electronically as well as submitting a summons application via the Internet is an option for the parties and the judges, and not a requirement by law. However, in practice, most correspondence with Swedish courts is now digital. The paragraphs in question regarding electronic signatures are formulated as an option that “if” you choose to use an electronic signature, it is a requirement that it is done by using a certain form of advanced electronic signature. The use of the e-service provided by the Swedish courts is also an option available to the public.

Although the Swedish government has big plans for the future of digitalisation of litigation, Swedish litigation cannot be considered a fully digitalised process. The COVID-19 has made the use of digital means and tools more frequent but the general rule is still that parties must appear in person during a hearing.

Even if some elements have been enforced for the digitalisation of litigation that has made the process more efficient, such as digital judgments where judges can sign judgments with an electronical signature, there is still work to be done. Planning of hearings, some communication, summaries of the parties legal arguments, legal grounds and evidence, etc. are still done manually.

Significant changes have taken place in the way a court communicates with the outside world and in its internal administration with the move from paper to digital files. This has radically streamlined the work of the court. But the challenge ahead is to further automate the court process. For example, simpler decisions could be automated. There is also a lot of work to be done to meet the legitimate expectations of citizens to be able to communicate with courts online. It is still difficult to transfer large amounts of data to the Swedish courts. This needs to improve. The possibilities are endless when it comes to digitalisation, and the Swedish court process has the potential to do more than it is already doing.

Apart from the laws and regulations stated above, there are no specific rules that deal with the use of technology in litigation. The rules governing litigation are set out in the Swedish Procedural Code. As mentioned above, the law has been amended in certain respects in order to keep up with technological progress.

As mentioned above, the Swedish government is attempting to develop the Swedish litigation system and promote the digitalisation of litigation.

For instance, the e-service "Submission service for public authorities" was introduced for the administrative courts and land and environmental courts (Mark- och miljödomstolarna). Authorities can use the e-service to submit appealed cases to these courts. The development of the service will continue in 2023 and will include Sweden's general courts.

Currently, there are no specific regulations in Swedish law that deal with the use of AI in litigation.

However, the courts’ use of AI may to some extent be subject to restrictions as a result of the General Data Protection Regulation (GDPR). Some provisions in the GDPR limit the possibility of using AI for automated decision-making. For example, Article 22(1) of the GDPR contains a provision stating that any data subject has the right not to be subject to decisions based solely on automated processing, including profiling, which produces legal effects concerning the subject, or those that similarly significantly affect the individual. Profiling is defined in Article 4(4) GDPR as the automated processing of personal data for the purpose of evaluating certain personal aspects relating to a person in particular to determine inter alia reliability. Automated decision-making in the courts that involves the processing of personal data to analyse or predict. For example, reliability, behaviour, work performance, health or the like may therefore be prohibited.

As far as we are aware, AI tools have not been used by any party in litigation and no decision has been made in that regard.

In addition, the EU's proposal for an Artificial Intelligence Act (COM/2021/206 final, AI Act) specifically addresses the use of AI systems in justice by classifying it as a high-risk system.

According to Annex III, no. 8 of the draft regulation, AI systems that are intended to assist a judicial authority in researching and interpreting facts and the law and in applying the law to a concrete set of facts are considered to be high risk and are therefore subject to specific regulatory requirements under Articles 8 to 15 of the draft AI Act.

Ever-increasing threats from the outside world (e.g. cyber threats) in combination with increased digitalisation represent an ongoing challenge, and the work to secure IT environments and invest in information security issues is therefore part of the ongoing mission.

In 2022, important security-enhancing measures were implemented to increase information security in the Swedish courts. Secure identification (e.g. two-factor authentication) was introduced for all authorities within the Swedish courts, thus enabling electronic signatures on judgments.

The courts also have the option of using encrypted e-mail (i.e. secure e-mail), which means that when the court sends an injunction, it could send the injunction as an encrypted message. This means that the message is not sent directly to the party's mailbox, but instead is stored on a secure server where the party must click on a link to access the information. Unlike normal e-mail, this ensures that outsiders cannot read the message as it makes its way to the intended recipient.

The Swedish ordinance (2022:524) on state authorities' preparedness (Förordning (2022:524) om statliga myndigheters beredskap) has, among other things, the mandate of reducing the vulnerability of society. This is achieved by regulating the operations of authorities in various ways. For instance, the ordinance states that each authority is responsible for ensuring that its own information-management system meets such basic and special security requirements that the authority's activities can be carried out in a satisfactory manner (section 13). Furthermore, an authority must promptly report IT incidents that have occurred in the reporting authority's information system and incidents that may seriously affect the security of the information management for which the authority is responsible, or that have occurred in services that the authority provides to another organisation, to Swedish Civil Contingencies Agency (Myndigheten för samhällsskydd och beredskap) (MSB)  (section 14).

Furthermore, the ordinance authorises the MSB to issue further regulations on security requirements for information management systems, risk and vulnerability analyses and IT incident reporting (sections 26-27). On 1 September 2020, the MSB issued such regulations on information security, IT security and incident reporting for government agencies. The regulations give the MSB clearer requirements to direct, secure resources and follow up on information regarding security work. The regulations also clarify the minimum IT security measures that a government agency must have in place in the IT environment.

Regarding specific rules than can be applicable to the use of data, it is relevant to mention that General Data Protection Regulation (GDPR) rules apply to the activities of the courts and other judicial authorities (Article 23 GDPR). The legal basis for data processing operations of the judiciary is Article 6 GDPR.

Because application for a summons can be submitted using the e-service provided by the Swedish court, it will be easier to submit applications for a summons on a larger scale, since all documents and powers of attorneys can be signed electronically. The digitalisation of the summons procedure may make the process more efficient and more accessible for consumers.

In this digital age, it will also be easier for companies to collect claims and file them together, or for individuals to join together and file a class action. There are legal tech startups and companies that are making it easier and more efficient for consumers to make legal claims. The use of digital tools in litigation may therefore create new risks for companies as the process of making and filing claims becomes more automated and accessible. Companies may have to devote more time and resources toward these large-scale claims, both to be able to defend against them and to investigate them.

In the context of large-scale claims, it is relevant to address the directive about collective consumer protection that will be applied in Swedish law. On the 25 November 2020, Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC was adopted. The Swedish provisions that will implement the directive will apply from 25 June 2023. The aim of the directive is, inter alia, to achieve a high level of consumer protection and to improve consumer access to justice. This will be ensured by the existence in all member states of a procedure allowing qualified entities to bring representative actions to protect the collective interests of consumers against traders.

The Swedish courts have quite recently introduced the first Artificial Intelligence (AI) solution. It is a translation application specially designed for legal language models that will be used to translate the decisions of the Supreme Court and the Supreme Administrative Court. The application is intended to be useful for decisions that need to be translated, such as human rights judgments and decisions, as well as for other types of precedents.

The Swedish National Courts Administration is also working on developing more advanced AI solutions, such as anonymisation functions that can be used when a judgment is requested and personal information about affected parties must be non-visible.

The Swedish Tax Agency has introduced an AI-chatbot (Skatti) that will help with the efficiency of the Tax Agency’s operations. Skatti will be able to answer questions on, for example, civil registration and ID cards, private income tax declarations and how to start and end a business. However, Skatti cannot answer questions in English even though it can understand some English.