Notice and Take-Down Procedure
New Act on Electronic Signatures
Two new e-commerce related government bills were submitted to Parliament on October 26 2001. The government proposes that the E-commerce Directive (2000/31/EC) be implemented by a new Act on the Offering of Information Society Services and the Electronic Signatures Directive (1999/93/EC) by a new Act on Electronic Signatures. The transposition of the two directives will also affect existing legislation, especially the marketing provisions of the Consumer Protection Act, the Telecommunications Privacy Act and the Unfair Business Practices Act.
Proposed Rules on Information Society Services
The government bill on the offering of information society services follows the lines adopted in the proposal submitted by the working group that has been preparing the legislation. The new act will apply to the offering of services in networks and also to the offering of goods when such offering is done electronically.
The introduction of the new provisions will clarify the current legal status of electronic contracting. However, it will not introduce significant changes to Finnish contract law since electronic contracts are, as a general rule, already recognized as valid and binding agreements under the existing legislation. This is because freedom of contract and free evaluation of evidence are well-established basic principles in Finnish legal theory. Existing form requirements would, nevertheless, require certain categories of contracts to be concluded by more traditional means. For example, it will not be possible to conduct a real-estate sale online.
Notice and Take-Down Procedure
Proposed provisions on the limitation of liability of the intermediary service providers would bring about more significant additions to the national legislation. The E-commerce Directive's rules concerning mere conduit (Article 12) and caching (Article 13) would be adopted as set forth in the directive. However, in relation to hosting services (Article 14) Finland would go further than the directive by regulating the conditions and procedures of taking down material hosted on a server.
According to the government bill, illegal material or material published or distributed unlawfully could be removed from the server. Normally this requires a court order, but copyright-protected material could be taken down on the basis of a copyright holder's notice if the notice fulfils the criteria specified in the draft act.
This newly proposed notice and take-down procedure has raised some questions, as it would grant copyright a special status as opposed to other IP rights. The fact that the copyright holder alleging certain material to be infringing would be under no obligation to provide security for giving false notice is a novel idea in Finland. Several statements addressed to the working group have questioned whether content providers will have sufficient legal protection under the proposed rules. According to the government bill the rights of content providers would not be undermined, as they could demand that the material be restored by giving a specified notice to the service provider within 14 days of receiving information on the rightholder's notice. The procedure may, nevertheless, leave room for misconduct.
A copyright holder or a content provider would be liable to pay damages for giving false information in the notice. However, this liability would not arise where the copyright holder or content provider had justifiable reasons to believe that the information given was correct. The principles regulating the possible liability due to incorrect information set forth in Finnish law on compensation for damages would impose strict requirements for compensating monetary damages in such cases.
If adopted by Parliament, the new Act on the Offering of Information Society Services will come into force on January 16 2002.
New Act on Electronic Signatures
The government bill on electronic signatures does not greatly differ from the Electronic Signatures Directive. According to the bill an advanced electronic signature based on a qualified certificate and a secure signature creation device would fulfil the formal legal requirement for a document to be signed. The proposed legislation concentrates on the certification service providers offering qualified certificates to the public and the rules would not be applied to certain other parties acting in the field (eg, private key providers).
It is not known precisely when the Act on Electronic Signatures will come into force. However, it is the intention of the legislative authorities that it will come into effect by the end of 2001.
For further information on this topic please contact Eeva Hakoranta or Kati Määttä at Roschier Holmberg, Attorneys Ltd. by telephone (+358 20 506 6000) or by fax (+358 20 506 6100) or by email ([email protected] or [email protected]).