FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 2872/02
by K.U.
against Finland
The European Court of Human Rights (Fourth Section), sitting on 27 June 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrG. Bonello,
MrM. Pellonpää,
MrK. Traja,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 1 January 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Finnish national who was born in 1986 and lives in Helsinki. He is represented before the Court by Mr Pekka Huttunen, a lawyer practising in Helsinki. The Government are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties and as they appear from the documents filed in the case, may be summarised as follows.
On 15 March 1999 an unknown person or persons placed an advertisement on a dating site on the Internet in the name of the applicant, who was then 12 years old, without his knowledge. The advertisement mentioned his age and year of birth, gave a detailed description of his physical characteristics, a link to the web page he had at the time with his picture on it, as well as his phone number, which was accurate save for one digit. In the advertisement, it was claimed that he was looking for an intimate relationship with a boy of his age or older “to show him the way”.
The applicant became aware of the announcement on the Internet when he received an answer from a man, offering to meet and “to then see what you want”.
The applicant’s father requested the police to identify the person who had placed the advertisement in order to prefer charges against that person. The service provider however refused to divulge the identity of the holder of the so-called dynamic IP address in question, regarding itself bound by the confidentiality of telecommunications as defined by law.
The police then asked the Helsinki District Court (käräjäoikeus, tingsrätten) to oblige the service provider to divulge the said information pursuant to section 28 of the Criminal Investigations Act (esitutkintalaki, förundersökningslagen; Act no. 449/1987, as amended by Act no. 692/1997).
In a decision issued on 19 January 2001, the District Court refused since there was no explicit legal provision authorising it to order the service provider to disclose telecommunications identification data in breach of its professional secrecy. The court noted that by virtue of Chapter 5a, section 3 of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen; Act no. 450/1987) and section 18 of the Protection of Privacy and Data Security in Telecommunications Act (laki yksityisyydensuojasta televiestinnässä ja teletoiminnan tietoturvasta, lag om integritetsskydd vid telekommunikation och dataskydd inom televerksamhet; Act no. 565/1999) the police had the right to obtain telecommunications identification data in cases concerning certain offences, notwithstanding the obligation to observe secrecy. However, calumny (Chapter 27, Article 3 of the Penal Code; rikoslaki, strafflagen; Act no. 908/1974) was not such an offence.
On 14 March 2001 the Court of Appeal (hovioikeus, hovrätten) upheld the decision and on 31 August 2001 the Supreme Court (korkein oikeus, högsta domstolen) refused leave to appeal.
The person who answered the dating advertisement and contacted the applicant was identified and appropriate charges were brought.
The managing director of the company which provided the Internet service could not be charged, because the prosecutor found, in a decision given on 2 April 2001, that the alleged offence had become time-barred. The alleged offence was a violation of section 48 of the Personal Information Act (henkilörekisterilaki, personregisterlagen; Act no. 471/87), i.e. that the service provider had published a defamatory announcement on its website without verifying the identity of the sender.
B. Relevant domestic law and practice
At the material time, Chapter 27, Article 3 of the Penal Code provided:
“A person who in a manner other than that stated above commits an act of calumny against another by a derogatory statement, threat or by another degrading act, shall be sentenced for calumny to a fine or to imprisonment for a maximum period of three months.
If the calumny is committed in public or in print, writing or a graphic representation disseminated by the guilty party or which the guilty party causes, the person responsible shall be sentenced to a fine or to imprisonment for a maximum period of four months.”
At the material time, Chapter 5a, section 3 of the Coercive Measures Act provided:
“Preconditions of telecommunications monitoring
Where there is reason to suspect a person of
1) an offence not punishable by less than imprisonment of four months,
2) an offence against a computer system using a terminal device, a narcotics offence, or
3) a punishable attempt to commit an offence referred to above in this section,
the authority carrying out the criminal investigation may be authorised to monitor a telecommunications connection in the suspect’s possession or otherwise presumed in his use, or to temporarily disable such a connection, if the information obtained by the monitoring or the disabling of the connection can be assumed to be very important for the investigation of the offence ...”
Section 18, subsection 1(1) of the Act on the Protection of Privacy and Data Security in Telecommunications, which entered into force on 1 July 1999 and was repealed on 1 September 2004, provided:
“Notwithstanding the obligation of secrecy provided for in section 7, the police have the right to obtain:
(1) identification data on transmissions to a particular transcriber connection, with the consent of the injured party and the possessor of the subscriber connection, necessary for the purpose of investigating an offence referred to in Chapter 16, section 9a, Chapter 17, section 13(2) or Chapter 24, section 3a of the Penal Code (Act no. 39/1889)...”
Section 17 of the Act on the Exercise of Freedom of Expression in Mass Media (laki sanavapauden käyttämisestä joukkoviestinnässä, lagen om yttrandefrihet i masskommunikation: Act No. 460/2003), which came into force on 1 January 2004, provides:
“Release of identifying information for a network message
On the request of an official with the power of arrest... , a public prosecutor or an injured party, a court may order the keeper of a transmitter, server or other similar device to release information required for the identification of the sender of a network message to the requester, provided that there are reasonable grounds to believe that the contents of the message are such that providing it to the public is a criminal offence. However, the identifying information may be ordered to be released to the injured party only in the event that he or she has the right to bring a private prosecution for the offence. The request shall be filed with the District Court of the domicile of the keeper of the device, or with the District Court of Helsinki within three months of the publication of the message in question. The court may reinforce the order by imposing a threat of a fine.”
COMPLAINTS
1. The applicant complained under Article 8 of the Convention that an invasion of his private life had taken place.
2. He also complained under Article 13 that he had not had an effective remedy under national law to discover the identity of a person who put a defamatory text on the Internet in his name.
THE LAW
The applicant complained under Article 8 of the Convention that an invasion of his private life had taken place and that no effective remedy existed in this respect contrary to Article 13 of the Convention.
Article 8 provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 13 provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties’ submissions
The Government emphasised that in the present case the interference with the applicant’s private life was committed by another individual. The impugned act was considered in domestic law as an act of calumny and, according to the applicable provision of the Penal Code, would have been punishable as such. The existence of that provision, therefore, had a deterrent effect. According to current provisions, the same act would be punishable either as defamation or an invasion of personal reputation. The Government noted that an investigation was started so as to identify the person who placed the advertisement on the Internet, but was unsuccessful due to the legislation then in force. There were however other avenues of redress available, for example the Personal Information Act which provided protection against calumny in that the operator of the server, on the basis of that Act’s provisions on criminal liability (section 44) and liability for damages (section 42), was obliged to ensure that sensitive data recorded by it were processed with the consent of the data subject. Further, although the personal data offence had become time-barred the applicant still had the possibility to seek compensation from the publisher of the advertisement. When compared to X and Y v. the Netherlands (judgment of 26 March 1985, Series A no. 91), liability in damages, in the context of a less serious offence, provided a sufficient deterrent effect.
The Government also pointed out that the new Act on the Exercise of Freedom of Expression in Mass Media enabled the courts to order an operator of a server to release information identifying the sender of a message on the Internet where there were reasonable grounds for believing that the dissemination of the contents of the message to the public would be a criminal offence. They considered that the measures available secured respect for private life under Article 8 § 1 and provided effective remedies as required by Article 13 of the Convention.
The applicant submitted that Finnish legislation at the time protected the criminal whereas the victim had no means to obtain redress or protection against a breach of privacy. Under the Penal Code the impugned act was punishable, but the Government had neglected to ensure that the Act on the Protection of Privacy and Data Security in Telecommunications and the Coercive Measures Act were consistent with each other. He argued that the random possibility of seeking civil damages, particularly from a third party, was not sufficient to protect his rights. He emphasised that he did not have the means to identify the person who placed the advertisement on the Internet. While compensation might in some cases be an effective remedy, this depended on whether it was paid by the person who infringed the victim’s rights, which was not the case in his application. According to the Government, new legislation was in place which, had it existed at the time of events, would have rendered this case unnecessary. In his view, the Government had not provided any justification for the failure to afford this protection to him at the material time. He considered, therefore, that there had been breaches of Articles 8 and 13.
B. The Court’s assessment
The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that the complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits.
T.L. EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy