New Legislation to Regulate Freedom of Speech on the Internet

The fundamental right of freedom of speech is guaranteed by the Finnish Constitution. However, the Finnish Ministry of Justice has been preparing new legislation regulating freedom of speech in mass communications in order to provide for more specific rules and to gather all the relevant provisions in one act. This legislation will also attempt to clarify and modernize the regulation of mass communications.

The new act would be technology-neutral and cover all forms of mass communications, regardless of the mode of storage, publishing or distribution of such communications. New forms of communications would also be covered by the legislation.

Scope of Application

The new legislation is expected to apply to all publishing and program service activities carried out in Finland. The draft act provides that activities are covered by the act if:

• the transmitter, server or other equipment used in the communications is located in Finland;
  
  
• the message is intended to be received in Finland; or
  
  
• the main editorial work is carried out in Finland.

However, the act would not contradict the country of origin principle expressed in the E-commerce Directive.

Communications will probably only be covered by the act if they are directed at the public (ie, the group of recipients of communications is open). According to the draft legislation publicly accessible websites, and email and short message service messages directed to an extensive group of addressees, would probably also fall under the act's scope.

The draft act defines communications directed at the public as 'network messages'. As regards technical production, delivery, conveyance and distribution of publications and network messages, the legislation would apply only in part. Further, with regard to private internet homepages that are not set up for commercial gain, only the provisions on civil and criminal liability, and the prohibition against distributing unlawful content, would apply. However, open company homepages would qualify as network messages and thus be covered by the act.

Duties Relating to Network Publications

The definition of a 'network publication' set out in the draft act corresponds, at least to some extent, to the traditional concept of a periodical. A network publication is defined as an entity of network messages intended to be published regularly. For example, an electronic mail-order catalogue would qualify as a network publication, but a homepage simply presenting the company would not. In addition, the attachments and headlines (eg, banners on the portal) would be considered as parts of the network publication.

It is proposed that a network publisher be obliged to appoint one or more editors to supervise the editorial work and to be responsible for the content of the editorial material. This would mean that a responsible editor should also be appointed for commercial publications that are published on the Internet. The publisher would also be obliged to store all network publications for three months after making the publication available to the public.

The proposed rules have raised some questions as the act's scope of application is considered to be quite extensive, also covering publications that contain no editorial material, such as sales catalogues or other marketing material. Critics also fear that the storage obligation may cause problems, especially in relation to portals that are updated several times a day.

Storage and Disclosure of Identification Data

The draft legislation obliges a server administrator to store identification data regarding the sender of a network message for three months. This obligation has also been criticized, as it is fairly extensive and a costly duty, especially for small and medium-sized companies.

The draft further provides that a court order will oblige the administrator of a server to hand over identification data to the public prosecutor, the authorities with powers of arrest or a concerned third party, if there are reasonable grounds for suspecting that a message's content is unlawful. In such case the court may also order the distribution of a message to be interrupted. If the message clearly contains forbidden pornography or material inciting racial hatred, the administrator of the server may also interrupt the distribution of such material on its own initiative.

Statement of Defence and Right for Correction

Under the new legislation a private individual with a justified reason for considering himself or herself to have been offended by a message published in the network publication would have the right to have a statement of defence published in the same publication. It is also proposed that private individuals as well as legal entities would have the right to have an incorrect statement concerning them or their activities corrected in the same network publication (provided that the error is major). The right for correction extends to, for example, an electronic mail-order catalogue containing unlawful comparative advertising. The statement of defence as well as the correction must be published free of charge.

As to the legal sanctions, the consequence of an intentional or negligent breach of provisions of the act could result in a fine or forfeiture of material intended to be distributed.

Future Developments

A government bill proposing the new legislation is expected to be submitted to the parliamentary proceedings in March 2002. If adopted by Parliament the act would come into force during the first quarter of 2003, at the earliest.

For further information on this topic please contact Rainer Hilli or Kati Tusa 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]).