[governance] Art 8 ECHR / Internet / anonymity

[HIBBARD Lee]

Press release issued by the Registrar

CHAMBER JUDGMENT 
K.U. v. FINLAND

The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of K.U. v. Finland (application no. 2872/02).

The Court held unanimously that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights concerning the Finnish authorities' failure to protect a child's right to respect for private life following an advertisement of a sexual nature being posted about him on an Internet dating site.

Under Article 41 (just satisfaction) of the Convention, the Court awarded K.U. 3,000 euros (EUR) in respect of non-pecuniary damage. (The judgment is available only in English.)

1.  Principal facts

The applicant, K.U., is a Finnish national who was born in 1986.

The case concerned the applicant's complaint that an advertisement of a sexual nature was posted about him on an Internet dating site and that, under Finnish legislation in place at the time, the police and the courts could not require the Internet provider to identify the person who had posted the ad.

In March 1999 an unknown individual posted the ad on an Internet dating site in the name of the applicant without his knowledge. The applicant was 12 years old at the time. The ad mentioned his age and year of birth and gave a detailed description of his physical characteristics. There was also a link to the applicant's web page where his picture and telephone number, accurate save for one digit, could be found. The ad announced 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 that announcement when he received an e-mail from a man, offering to meet him and "to then see what he wanted".

The applicant's father requested the police to identify the person who had posted the ad in order to bring charges. The service provider, however, refused as it considered itself bound by the confidentiality of telecommunications as defined under Finnish law.

In a decision issued on 19 January 2001, Helsinki District Court also refused the police's request under the Criminal Investigations Act to oblige the service provider to divulge the identity of the person who had posted the ad. It found that there was no explicit legal provision in such a case, considered under domestic law to concern calumny, which could oblige the service provider to disregard professional secrecy and disclose such information.

Subsequently the Court of Appeal upheld that decision and the Supreme Court refused leave to appeal.

2.  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 1 January 2002 and declared admissible on 27 June 2006.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (United Kingdom), President, 
Lech Garlicki (Poland), 
Giovanni Bonello (Malta), 
Ljiljana Mijović (Bosnia and Herzegovina), 
David Thór Björgvinsson (Iceland), 
Ján Šikuta (Slovakia), 
Päivi Hirvelä (Finland), judges, 
 
and also Lawrence Early, Section Registrar.

3.  Summary of the judgment2 

Complaints

Relying on Articles 8 (right to respect for private and family life) and 13 (right to an effective remedy), the applicant complained about the invasion of his private life and the fact that no effective remedy existed under Finnish law to reveal the identity of the person who had posted the ad about him on the Internet dating site.

Decision of the Court

Article 8

Although in terms of domestic law the applicant's case was considered from the point of view of calumny, the Court preferred to highlight the notion of private life, given the potential threat to the boy's physical and mental welfare and his vulnerable age.

The Court considered that the posting of the Internet advertisement about the applicant had been a criminal act which had resulted in a minor having been a target for paedophiles. It recalled that such conduct called for a criminal-law response and that effective deterrence had to be reinforced through adequate investigation and prosecution. Moreover, children and other vulnerable individuals were entitled to protection by the State from such grave interferences with their private life.

The incident had taken place in 1999, that is, at a time when it had been well-known that the Internet, precisely because of its anonymous character, could be used for criminal purposes. The widespread problem of child sexual abuse had also become well-known over the preceding decade. It could not therefore be argued that the Finnish Government had not had the opportunity to put in place a system to protect children from being targeted by paedophiles via the Internet.

Indeed, the legislature should have provided a framework for reconciling the confidentiality of Internet services with the prevention of disorder or crime and the protection of the rights and freedoms of others. Although such a framework has subsequently been introduced under the Exercise of Freedom of Expression in Mass Media Act, it had not been in place at the relevant time, with the result that Finland had failed to protect the right to respect for the applicant's private life as the confidentiality requirement had been given precedence over his physical and moral welfare. The Court therefore found that there had been a violation of Article 8.

Article 13

Given the finding under Article 8, the Court considered that there was no need to examine the complaint under Article 13.

 
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