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LEGISLATION
Act 1068/2006, on the Measures Preventing the Propagation of Child pornography, December 2006 [The law explicitly allows the police to maintain, and access providers to use for blocking, a secret list of websites, some 4000 entries, which may include child pornography. However, almost all providers have ceased using the list. A Supreme Administrative Court case, KHO 2013:136, held that a site providing links of blocked targets was helping in propagating child pornography and there were grounds to add it to the blocking list (see below).] Act 460/2003, on the Exercise of Freedom of Expression in Mass Media, June 13, 2003 [English version] [The law includes additional provisions on freedom of expression. Most importantly, hosting providers have no "editor" responsibility. In this regard, Sections 17–20 and 22 apply to technical operations "consisting solely of the technical production, transmission, intermediation or distribution of publications or network messages" (Section 3). Those provisions include a possibility for the court to order the disclosure of information to identify the message in a network if its publication is a criminal offence (Section 17) or to cease the distribution of a message with similar characteristics (Section 18).] Act 458/2002, on Information Society Services and Electronic Commerce, June 5, 2002 [English version] [The law implements the E-Commerce Directive almost verbatim, Sections 13–15 corresponding to Articles 12–14 of the Directive. (1) A presumption of knowledge is provided by the hosting exemption in Section 15 for certain extreme pornography or incitement to hatred, which are assumed to be known also without a notification. (3) Section 16 allows a court to issue an order to disable access to information, but only applies to hosting providers. The general obligation by the service provider to take action to implement a decision by the authorities is provided in Section 19, which implements Articles 12(3), 13(3) and 14(3) of the Directive. (4) There is no specific provision corresponding to Article 15 of the Directive, regarding the prohibition of monitoring obligations, nor a provision on the obligation to notify the authorities if the service provider notices illegal behavior. (5) Sections 20–25 implement a rather detailed, DMCA-like notice-and-takedown mechanism that only applies to the hosting providers.] Copyright Act 404/1961, July 8, 1961 [English version] [Section 60a empowers a court to order an intermediary of those users to disclose information of subscribers who make copyrighted content available to the public "to a significant extent". Section 60b governs a suit to forbid continuing the infringement. Section 60c provides a possibility for an "injunction to discontinue" for intermediaries, essentially providing for website blocking or user disconnection orders. In case of a preliminary injunction, the claimant is required to sue the infringer as per Section 60b. Section 60c implements Article 8(3) of Infosoc Directive (2001/29/EC) and Article 9 of Enforcement Directive (2004/48/EC).] Code of Judicial Procedure 4/1734 [English version] [Chapter 7 and in particular its Section 3 provides a general provision on judicial precautionary (preliminary) measures. However, it has been held that these injunctions cannot be applied against intermediaries (eg. in the context of copyright infringement), because they are not infringers and there is no liability, negligence, or such on part of the intermediary.]
BILLS AND PENDING PROPOSALS
Copyright Act Amendment, HE 181/2014, submitted on October 9, 2014[The upcoming bill would inter alia rephrase Section 60c on blocking injunctions, reportedly making it clearer and removing the requirement to sue the infringer in case of anonymity.]Information Society Code, submitted on January 30, 2013 [English version][The bill, approved with changes on October 7, 2014, combines most telecoms regulations in a consolidated code. It will also move the E-Commerce liability provisions there without changes. The data retention legislation was maintained in place with some minor amendments. Intermediaries will need to comply with certain data protection requirements. Finally, no significant changes to the core intermediary liability provisions were included.]
DECISIONS
Superior Courts
Supreme Administrative Court, Lapsiporno.info, KHO 2013:136, August 26, 2013[child pornography, hosting provider, linking, blocking list, Act 1068/2006] [The Court held that a site providing links of blocked targets was helping in propagating child pornography and there were grounds to add it to the blocking list provided by the Act 1068/2006 (see above).] [For critique in Finnish, see eg. Pekka Savola and Riku Neuvonen, KHO 2013:136 – Verkkotunnusluettelon julkistamisen katsottiin edesauttavan lapsipornon levittämistä (2014) 112 Lakimies 114.] Supreme Court, Finreactor, 2010:47, June 30, 2010[copyright, infringement, hosting provider, torrent, Finreactor, joint liability] [The operators and administrators of Bittorrent tracker "Finreactor" were held to be jointly criminally liable for users' copyright infringement and, in consequence, also liable for compensation and remuneration. The hosting exemption was not applicable due to the awareness, knowledge and participation of Finreactor to the infringing activities. The case has been reported in English for example in Pessi Honkasalo, Criminal Proceedings Against the Administrators of a BitTorrent Tracker: Finreactor KKO 2010:47, 32 EIPR 591 (2010). ]There have been also a number of appellate court decisions where the operators of DirectConnect hubs were similarly held to be responsible and liable for compensation (see below).] Supreme Court, Finreactor, 2010:48, June 30, 2010[copyright, uploader, torrent, Finreactor, making available, criminally liable] [In a parallel Finreactor case, the uploader of a torrent file was held to be criminally liable for other users' making available copyrighted files to the public.]
Appellate CourtsCourt of Appeal of Helsinki, TeliaSonera Finland, S 12/2223, February 11, 2013[[copyright, hosting provider, torrent, PirateBay, linking, list of blocked IP and DSN, court approval] Court of Appeal of Helsinki, DNA, S 12/1850, February 8, 2013[copyright, hosting provider, torrent, PirateBay, linking, list of blocked IP and DSN, court approval] Court of Appeal of Helsinki, Elisa, S 11/3097, June 15, 2012 (Supreme Court denied leave to appeal)[copyright, hosting provider, torrent, PirateBay, linking, list of blocked IP and DSN, court approval] [These cases concerned blocking access to The Pirate Bay. Requests were granted, but the court approved the list of blocked IP addresses and DNS names. Court approval is required for any changes to this list. [The cases have been reported in English (along with other cases) in Pekka Savola, Proportionality of Website Blocking: Internet Connectivity Providers as Copyright Enforcers, 5 JIPITEC 116 (forthcoming 2/2014). District Court decision is also discussed in Marcus Norrgård, Blocking Web Sites – Experiences from Finland in Johan Axhamn (ed.), Copyright in a Borderless Online Environment (Norstedts Juridik 2012). For more extensive discussion in Finnish, see eg. Pekka Savola, Internet-operaattoreihin kohdistetut tekijänoikeudelliset estomääräykset erityisesti vertaisverkkopalvelun osalta’ (Licentiate of Science (Technology) thesis, Aalto University 2013) and Taina Pihlajarinne, Internetvälittäjä ja tekijänoikeuden loukkaus (Lakimiesliiton Kustannus 2012).] Court of Appeal of Eastern Finland, Decision S 12/306, October 4, 2012 [copyright, infringement, internet access subscribers, open WLAN] [The Court held that, in case of infringiment committed through an open WLAN network, it was more likely that the infringment, which was carried out by making works available to the public with DirectConnect, was committed by the the Internet access subscriber, rather than by some unknown user through the open WLAN network.] Court of Appeal of Helsinki, "pelastakaa pedofiilit" decision, R 07/3400, May 29, 2008 [hosting provider, DNS provider, blocking order] [The E-Commerce Act, Section 16 was applied to issue against a hosting provider an order to remove access to the website. However, probably due to a technical misunderstanding, the order was issued to a DNS provider. However, it is arguable whether a DNS provider is to be considered a hosting provider and could be ordered to remove infringing content from a domain name.] Court of Appeal of Helsinki, Decision S 05/445, June 2, 2005[copyright, preliminary measures, code of judicial procedure, intermediaries] [The Court held that the Code of Judicial Procedure, Chapter 7, Section 3 (see above) is not applicable against intermediaries to order measures for copyright infringement.]
Lower CourtsDistrict Court of Helsinki, Decision in case H 11/11065, July 21, 2012[copyright, section 60c, hosting provider, file sharing, p2p, DirectConnect] District Court of Helsinki, Decision in case H 11/11063, May 9, 2011[copyright, section 60c, hosting provider, file sharing, p2p, DirectConnect] District Court of Helsinki, Decision in case H 11/11018, March 31, 2011[copyright, section 60c, hosting provider, file sharing, p2p, DirectConnect] District Court of Helsinki, Decision in case H 08/3008, June 23, 2008 and August 6, 2008[copyright, section 60c, hosting provider, file sharing, p2p, DirectConnect] [In these four cases, Section 60c of the Copyright Act was applied to disconnect DirectConnect p2p filesharing users. All the issues were settled quickly afterwards and later the request was withdrawn.] [For a critique of this approach in Finnish, see Pekka Savola, Internet-operaattori ja perusoikeudet in Tapani Lohi (ed), Oikeustiede–Jurisprudentia XLVI:2013 (Suomalainen Lakimiesyhdistys 2013), at 154–156.] District Court of Helsinki , fin-tv.com, R 11/3075, April 29, 2011[copyright, freedom of expression act, access provider, blocking order] [In this case, Section 18 of the Freedom of Expression Act (460/2003) was argued to be the basis for access providers to block access to a website allegedly distributing Finnish copyrighted films. The applicant was the police. The district court rejected the request on five different grounds, including that (1) the access provider is not an intermediary referred to in Section 18, (2) the measures are ineffective and (3) the request was not specific enough.] District Court of Ylivieska-Raahe, Decision in case L 11/3769, May 14, 2012[copyright, infringement, internet subscribers, open WLAN, liability, unknown user] [The Court held that the provider of an open WLAN network was not shown to infringe and had no duty to protect the WLAN from outsiders. Therefore, the internet subscriber was not liable for infringement by some unknown user using the WLAN network. The fact that, at the same time the infringing activitiy took place, there was a public theater presentation in the internet subscriber's backyard may have been a factor taken into consideration by the court to conclude that someone else may have been the infringer.]
OTHER RESOURCES
Honkasalo Pessi, Criminal Proceedings Against the Administrators of a BitTorrent Tracker: Finreactor KKO 2010:47, 32 EIPR 591 (2010)Norrgård Marcus, Blocking Web Sites – Experiences from Finland in Johan Axhamn (ed.), Copyright in a Borderless Online Environment (Norstedts Juridik 2012). Savola Pekka, The Ultimate Copyright Shopping Opportunity: Jurisdiction and Choice of Law in Website Blocking Injunctions, 45(3) IIC 287–315 (2014)Savola Pekka, Blocking Injunctions and Website Operator's Liability for Copyright Infringement for User-Generated Links, 36 (5) EIPR 279-288 (2014)Savola Pekka, Proportionality of Website Blocking: Internet Connectivity Providers as Copyright Enforcers, 5 JIPITEC 116 (forthcoming 2/2014). Savola Pekka, Internet-operaattori ja perusoikeudet in >Tapani Lohi (ed), Oikeustiede–Jurisprudentia XLVI:2013 (Suomalainen Lakimiesyhdistys 2013), at 154–156Savola Pekka and Riku Neuvonen, KHO 2013:136 – Verkkotunnusluettelon julkistamisen katsottiin edesauttavan lapsipornon levittämistä, 112 Lakimies 114 (2014)
CONTRIBUTORS
Pekka SavolaResearcher, University of Helsinki, FinlandEmail: pekka.savola at helsinki.fi[personal page]
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