The ruling comes in a case in which a man installed a camera in the bedroom of his ex-girlfriend. The camera featured a wireless remote connection to the man's computer, allowing him to record the woman having sex with her new boyfriend.
He then sent the films to his ex-girlfriend's friends and relatives.
Both the district court and appeals court found the man guilty of spying and defamation. The court of appeal also stiffened the man's sentence, finding that the clandestine recordings amounted to molestation.
The man later appealed the molestation charge to the Supreme Court, which nullified the additional charge citing Sweden's current legislation on the matter.
In the formulation of its opinion, the highest court make it clear that it isn't happy about tossing out the charge.
The ruling concludes with a challenge to the Swedish parliament to review legislation dealing with such cases, according to the Hem & Hyra magazine.
“One can seriously question whether it's in agreement with the European Convention on Human Rights that conduct of this sort can be left completely unpunished,” wrote the Supreme Court.
“It is worth discussing whether the ordinance on molestation through inconsiderate behaviour fulfills the reasonable requirement of a clear and straightforward penal code.”
A Riksdag committee on privacy protection proposed a new ordinance early in the year to be added to Sweden's criminal code which would in principle prohibit photographing or filming people “who find themselves in a place out of view of the public” without their permission.
The new law is expected to come into force on January 1st, 2009.