Freedom of expression

The law on liabilities in public communications

The Finnish parliament has passed with modifications the law on the use of freedom of expression in public communications and on some related laws (HE 54/2002 vp). The law is often called "a freedom of expression law". However, the law is not about securing the freedom of expression, it is about the liabilities and responsibilities relating to the use of freedom of expression. The correct name for the law is thus the law on liabilites in public communications.

On 11 February 2003 the Constitutional Committee of the Finnish parliament suggested the original government's law proposal to be changed (PeVM 14/2002 vp). The changes will make the law acceptable. The parliament passed the law on 17 February 2003 with modifications by the Constitutional Committee.

Summary of the changes introduced by the Constitutional Committee:

  • 1.2 § now explicitly states that the freedom of expression principle should always have a priority when interpreting the law.
  • The definitions were clarified. Essentially the regulation now applies only to material produced by or modified by the publisher. There is thus no longer threat to the discussion groups: there will be no editor-in-chief who would be held legally responsible for others' writing. Everybody is responsible for her own writings, as before. Also e.g. the web portals or typical home pages were excluded from the definition.
  • The original proposal would have required the publishers to store the web publications or programs for two or three months. The time period was reduced to three weeks. This is a positive change, but is does not remove the fundamental problem. Why it is necessary to store web publications in the first place?

    Storing multimedia or e.g. educational programs for three weeks is still expensive. Additionally storing changes may need version control tools and expertice, which might be a problem especially for associations and small businesses. It is also unclear how personified dynamically created content should be treated. If each user sees a personalized page should then all versions be stored?

    Keeping the publication available would be sufficient to fullfill the archiving requirement, which is a good thing. However, it is still unclear whether the three weeks is counted from the moment that the web publication was first published or from the moment when the publication was last available to the public.

  • Mandatory storing of traffic data was removed completely from this law. :)
  • The Committee also made some other positive changes to the proposal.

The parliament made the proposed law significantly better - although there still are some problems. The Constitutional Committee did a good job.

[The text below applies to the original proposal]

The proposed law would restrict the freedom of expression in Internet. Additionally, the law would require logging of practically all Internet traffic.

One can commit a number of crimes using various means of expression, protected by the freedom of expression principle. One can for example commit a fraud (RL 36:1), libel (RL 24:9) or publish information violating others' right to privacy (RL 24:8). The right to free expression does not justify these crimes. Those guilty of these crimes must be held responsible for their actions. It is also clear that for example material put to a web page that violates someone's right to privacy, as defined by the criminal code (RL 24:8), must be removed, if the court so decides.

The proposed law on liabilities in public communications tries to solve the liability problem by setting various restrictions, requirements, formalities and criminal punishments.

The traditional printed media are unlikely to suffer any significant additional burden. The case may in fact be the opposite, since the law on liabilites in public communications is in many ways less strict than the "freedom of print" law - originating from post-censorship days in 1919 - that is supposed to be replaced.

The proposed law applies also to publishing in Internet. The proposed law on liabilities in public communications have the following grave shortcomings relating to the Internet:

  • Many of the definitions are not clear. Any law that controls or restrict the use of fundamental righs should be written clearly and unambiguously. In practice is often impossible to decide to exactly what the proposed law applies.
  • The proposed law requires the web publications to have an editor-in-chief. The editor-in-chief would have a criminal responsibility for all material published in his publication. However, the web publications often contain material published by third parties (discussion forums, virtual communities etc.). It is of course impossible to preview all this material. No-one should be made liable for the crimes committed by the others. This kind of editorial responsibility should not be extended to the material produced by the third parties. Instead, one could have a process according to which the material violating some law could be removed by a court order. The idea that the editor-in-chief should be responsible for crimes committed by others is quite strange. Why it would not be enough that only those responsible for the crimes would be punished? The current criminal law is sufficient to control the publication activities of at least the private persons and small organizations.
  • The proposed law forces publishers to archive all publications. All published material must be archived for two or three months. This will result in significant technical problems for small publishers, or if the material is altered often, if it is personalized or if there is some multimedia content (e.g. video streams). Why it is not required to videotape for example all public speeches and store the records for several months, just in the case that the speaker would commit a crime?
  • The proposed law forces the publishers and service providers to log practically all Internet traffic. This would be a serious invasion of privacy. According to the law maker, the compulsory archival of the log information is required because it is the only way to find out the identities of those who write anonymously and at the same time commit a crime. One must store the information of all such messages that may end up to be public for the period of three months. It is required to store at least the address (IP-address) from which the message originates or is relayed from. However, you do not need to store any time information! Because practically all messages transmitted in the Internet may end up public (for example email messages may end up to a public mailing list), one must store for example all email logs, HTTP- and SOCKS-proxy logs, NAT router logs and other router logs. In practice this kind of logging is of course often impossible, prohibitely expensive or completely useless. For example, if the message originates from a WWW-proxy, NAT router or Internet cafe, it is impossible to trace the originator of the message based on the IP addresses alone. But you must still log everything, because it is so said in the law. The writers of the law have had misconception that the technical means would always reveal the writer of the message - at least in principle, if not always in practice. But there is no single solution for finding the sender of a Internet message. The originator of an anonymous message can sometimes be identified by technical means or by the content of the message. But as in all fields of life, sometimes the criminals just cannot be apprehended.

The proposed law would restrict the freedom of expression in the Internet. The proposal does not take the realities of the Internet into account. The criminal responsibility for the material written by others, technically unrealistic archival and logging requirements, combined with the vague definitions, would probably be a death blow to many forms of Internet publications. The law maker has tried to apply the principles of the print press to the Internet in a straightforward way.

The law on liabilites in public communications is based on the same post-censorship ideas as the "freedom of the press" law of 1919 which the proposed law is supposed to replace. Furthermore, it is clear that the writers of the new law have had a very weak understanding of the Internet and underlying technologies.

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