Act on provision of information society services 458/2002.
Chapter 1. Scope of application and definitions
Section
1. Scope
This act shall prescribe for matters relating to
provision of information society services, in particular, for freedom to
provide services, for the obligation by service providers to give
information, for meeting formal requirements on contracts electronically
and for exempting service providers acting as intermediaries from
liability.
Section 2. Information society services
In this act, information society services shall refer to services
provided:
1) as distance services, i.e. without the parties
being present at the same time;
2) electronically, i.e. by
sending and receiving services via devices handling information
electronically or via storage of information so that only cables, a
radio connection, optical equipment or other electro-magnetic equipment
are used for sending, transmitting and receiving services;
3)
as data transfers requested personally by recipients of services; and
4) usually against a payment.
Section 3. Other
definitions
For the purposes of this act:
1)
service provider means any natural or legal person who provides
information society services;
2) state of establishment means
any state where a service provider in fact pursues an economic activity
using a fixed establishment;
3) recipient of the service means
any natural or legal person who, for professional ends or otherwise,
uses information society services, in particular for the purposes of
seeking information or making it accessible;
4) regulated
profession means any profession within the meaning of Article 1(d) of
Council Directive 89/48/EEC on a general system for the recognition of
highereducation diplomas awarded on completion of professional education
and training of at least three years' duration or of Article 1(f) of
Council Directive 92/51/EEC on a second general system for recognition
of professional education and training to supplement the said Directive;
5) co-ordinated field means the requirements laid down in Member States'
legal systems which service providers must comply with when commencing
and continuing their operations, such as requirements concerning:
a) qualifications, authorisation, registration or notification to the
authorities;
b) procedures, advertising and other marketing,
the quality and content of the service, contracts or the liability of
the service provider.
Section 4. Restrictions on
the scope
This act shall not apply to:
1)
taxation;
2) issues included in the scope of application of
Directive 95/46/EC of the European Parliament and of the Council on the
protection of individuals with regard to the processing of personal data
and on the free movement of such data and of Directive 97/66/EC of the
European Parliament and of the Council concerning the processing of
personal data and the protection of privacy in the
telecommunications
sector;
3) activities of notaries public and of corresponding
professionals which include the use of public authority;
4)
activities of an attorney or a legal counsel in court;
5)
lottery operations against payment.
Sections 5 and 6 of this
act shall not be applied to:
1) copyright, neighbouring
rights, industrial property rights or the rights referred to in Council
Directive 87/54/EEC on the legal protection of topographies of
semiconductor products and in Directive 96/9/EC of the European
Parliament and of the Council on the legal protection of databases;
2) issue of electronic money when some of the waivers prescribed in
Article 8 (1) of Directive 2000/46/EC of the European Parliament and of
the Council on the taking up, pursuit of and prudential supervision of
the business of electronic money institutions has been applied to an
issuer by a Member State;
3) advertising of units of
undertakings for collective investment in transferable securities
referred to in Article 44(2) of Council Directive 85/11/EEC on the
coordination of laws, regulations and administrative provisions relating
to undertakings for collective investment in transferable securities
(UCITS);
4) issues relating to freedom of establishment, free
provision of insurance and to the law applicable on contracts of
insurance prescribed in Articles 7 and 8 of the Second Council Directive
88/357/EEC on the co-ordination of laws, regulations and administrative
provisions relating to direct insurance other than life assurance; in
Article 4 of the Second Council Directive 90/619/EEC on the
co-ordination of laws, regulations and administrative provisions
relating to direct life assurance, laying down provisions to facilitate
the effective exercise of freedom to provide services; in Article 30 and
Title IV of the Third Council Directive 92/49/EEC on the co-ordination
of laws, regulations and administrative provisions relating to direct
insurance other than life assurance; and in Title IV of the Third
Council Directive 92/96/EEC on the co-ordination of laws, regulations
and administrative provisions relating to direct life assurance;
5) freedom of the parties to choose the law applicable to contract;
6) contractual obligations in consumer contracts;
7) mandatory
provisions of the law in a state where the property is located regarding
the form of a contract when the right to the property is established or
transferred by contract;
8) permissibility of unsolicited
commercial e-mail communication.
Chapter 2. Freedom
to provide information society services
Section 5.
Freedom to provide services
No requirements, falling
within the co-ordinated field, which restrict provision of information
society services in Finland, must be imposed on service providers
established in another state of the European Economic Area. However, a
court or some other competent authority may restrict provision of
certain services in accordance with its powers, separately prescribed,
if:
1) restrictions are necessary to maintain public order or
security, to safeguard public health or to protect consumers;
2) restrictions are directed at services which damage the objectives
referred to in point 1 or may seriously endanger their attainment; and
3) restrictions are in proportion to the objective.
Restrictions must not be implemented before the Member State where the
service provider is established, has been asked to take action in the
matter, but the Member State of establishment has not implemented the
action or the action has not been sufficient. In addition, the
Commission of the European Communities and the Member State where the
service provider is established, must be notified of the restrictions
before their implementation.
In urgent cases, restrictions may
be implemented, the provisions in Section 2 notwithstanding. The
Commission of the European Communities and the Member State where the
service provider is established, must be notified immediately of the
restrictions and of the reasons why the case is considered urgent.
The provisions in paragraphs 2 and 3 shall not apply to crime
investigation or when hearing the case in court.
Section 6. Observance of the Finnish law
Competent
authorities in Finland must supervise that the service providers
established in Finland observe the Finnish law in the co-ordinated field
also when provision of services is solely or mainly directed at another
Member State within the European Economic Area.
Chapter 3. Information requirements, and electronic orders and contracts
Section 7. General information to be provided
In addition
to the provisions elsewhere in the law on obligations to give
information, service providers must have at least the following
information easily, immediately and continuously available to the
recipients of the services and to the authorities:
1) the
service provider's name, geographical address in the state of
establishment, email address and other contact information through which
the service provider may be contacted quickly, directly and effectively;
2) the trade register or any other corresponding public register where
the service provider has possibly been entered and the service
provider's company and corporate ID or any other corresponding
identification in the said register;
3) the contact
information for the appropriate supervising authority if pursuit of the
operations requires a licence or registration;
4) the VAT
identification if the service provider is pursuing operations subject to
VAT.
In addition to the provisions in paragraph 1, service
providers which practise a regulated profession must have available the
following information:
1) any professional body or a
corresponding association to which the service provider belongs;
2) the occupational title and the Member State where it was awarded;
3) a reference to the professional code of conduct applicable in the
state of establishment and as to where and how it is accessible.
If information on the prices of goods or services are supplied when
providing information society services, they must be supplied clearly
and unambiguously. The information must indicate whether VAT and
delivery charges are included in the price. There are separate
provisions on notifying a price of consumer goods and services.
Section 8. Obligation to give information when placing an
order
In addition to the provisions elsewhere in the law
on obligations to give information, the service providers must, before
the recipient of the service places an order, have available to him/her
clear and easy to understand information at least on the following
matters:
1) technical stages when concluding a contract;
2) whether the service provider is storing the contract concluded and
whether it is accessible to the other party;
3) technical
means which may be used to identify and correct errors of entry before
placing an order;
4) languages which may be used to conclude a
contract;
5) codes of conduct concerning the matter, observed
by the service provider, and where and how they are electronically
accessible.
The provisions of paragraph 1 shall not be applied
to contracts concluded by solely using e-mail or a corresponding
personal method of communication. A contract may deviate from the
provisions of paragraph 1 unless the consumer is a party to the
contract.
Section 9. Supply of contractual terms
Service providers must supply recipients of services with contractual
terms so that the recipients may store and reproduce them.
Section 10. Order and acknowledgement of receipt
If an
order is placed using technical means, service providers must
immediately electronically notify receipt of the order. There is no need
to supply an acknowledgement of receipt if the ordered goods or services
are delivered electronically without delay.
Appropriate,
effective and easy to use technical means must be made available by
service providers to recipients of services allowing them to identify
and correct entry errors before placing an order.
The
provisions of paragraphs 1 and 2 shall not be applied to contracts
concluded by solely using e-mail or a corresponding personal method of
communication. A contract may deviate from the provisions of paragraph 1
and 2 unless the consumer is a party to the contract.
Section 11. The time of receipt
The order and the
acknowledgement of receipt, referred to in Section 10 above, is regarded
as received when it is available to the party it was addressed to.
Section 12. Meeting the formal requirements on a contract electronically
If a contract must be concluded in writing according to the law, this
requirement is also met by an electronic contract with contents that
cannot be unilaterally altered, and which remain accessible to the
parties. If a contract must be signed according to the law, the separate
provisions on electronic signatures shall be applied. The provisions of
this paragraph shall correspondingly apply to notifications and other
measures by the parties relating to the contractual relation which
according to the law must be in writing or signed.
If a
notification relating to a contract must be supplied verifiably
according to the law, this requirement may also be met by such an
electronic method with which it can be demonstrated that the recipient
has received the notification.
The provisions of paragraphs 1
and 2 shall not be applied to a contract concerning a property deal or
any other transfer of a property or a contract relating to family or
estate law.
Chapter 4. Exempting service providers,
acting as intermediaries, from liability
Section 13.
Exemption from liability in data transmission services and communication
network services
When an information society service is
provided, which consists of the transmission in a communication network
of information provided by a recipient of the service, or the provision
of access to a communication network, the service provider is not liable
for the content or transfer of the information transmitted if he/she:
1) does not initiate the transmission;
2) does not select the
receiver of the transmission; and
3) does not select or modify
the information contained in the transmission.
The acts of
transmission and of provision of access referred to in paragraph 1
include the automatic, intermediate and transient storage of the
information transmitted in so far as this takes place for the sole
purpose of carrying out the transmission in the communication network,
and provided that the information is not stored for any period longer
than is reasonably necessary for the transmission.
Section 14. Exemption from liability when caching the information
When an information society service is provided that consists of the
transmission in a communication network of information provided by a
recipient of the service, the service provider is not liable for the
automatic, intermediate and temporary storage of that information,
performed for the sole purpose of making more efficient the
information's onward transmission to other recipients of the service
upon their request, if he/she:
1) does not modify the
information;
2) complies with the conditions on access to the
information;
3) complies with rules regarding the updating of
the information, specified in a manner widely recognised and used by
industry;
4) does not interfere with the lawful use of
technology, widely recognised and used by industry, to obtain data on
the use of the information; and
5) acts expeditiously to
remove or to disable access to the information it has stored upon
obtaining actual knowledge of the fact that the information at the
initial source of the transmission has been removed from the network, or
access to it has been disabled, or that a court or an administrative
authority has ordered such removal or disablement.
Section 15. Exemption from liability in hosting services
When an information society service is provided that consists of the
storage of information provided by a recipient (content producer) of the
service, the service provider is not liable for the information stored
or transmitted at the request of a recipient of the service if he/she
acts expeditiously to disable access to the information stored:
1) upon obtaining knowledge of the order concerning it by a court or if
it concerns violation of copyright or neighbouring right upon obtaining
the notification referred to in Section 22;
2) upon otherwise
obtaining actual knowledge of the fact that the stored information is
clearly contrary to Section 8 of Chapter 11 or Section 18 of Chapter 17
of the Penal Code (39/1889).
The provisions in paragraph 1
shall not apply if the content producer is acting under the authority or
the control of the service provider.
Section 16. An
order to disable access to information
On application by a
public prosecutor or a person in charge of inquiries or on application
by a party whose right the matter concerns, a court may order the
service provider, referred to in Section 15, to disable access to the
information stored by him/her if the information is clearly such that
keeping its content available to the public or its transmission is
prescribed punishable or as a basis for civil liability. The court must
urgently process the application. The application cannot be approved
without reserving for the service provider and the content producer an
opportunity to be consulted except if the consultation cannot be
arranged as quickly as the urgency of the matter so necessarily
requires.
A court order must also be made known to the content
producer. If the content producer is not known, the court may order the
service provider to take care of notification.
An order ceases
to be in effect unless charges are raised for an offence based on the
content or transmission of information referred to in the order or, when
concerning a liability, action is brought within three months of issuing
the order. On request by a public prosecutor, by a complainant or by an
interested party within the time limit referred to above, the court may
extend this time limit by a maximum of three months.
The
service provider and the content producer have the right to apply for
reversal of the order in the court where the order was issued. When
dealing with a matter concerning reversal of the order, the Act
(307/1986) of the general court of first instance on dealing with
non-contentious civil cases shall be observed. However, the court takes
care of the necessary procedures to hear a public prosecutor. The
reversal must be applied for within 14 days of the date when the
applicant was notified of the order. The information must not be made
available again when the hearing of the case
concerning the reversal
is pending unless otherwise ordered by the court dealing with the case.
A public prosecutor has also the right to appeal the decision that
reversed the order.
Section 17. Competent court
The application referred to in Section 16 above shall be heard by the
court of the service provider's domicile. However, the application may
also be heard by the court in Helsinki. A chairman of the court alone
may also constitute a quorum.
Section 18. Legal
safeguards of the content producer
If the service provider has prevented access to information under paragraph 1(2) of Section 15, he/she must immediately notify the content producer of this in writing or electronically so that the content of the notification cannot be unilaterally altered and that it remains accessible to the parties.
The notification must state the reason for prevention as well as
information on the right of the content producer to bring the matter for
a court hearing. The notification must be made in the mother tongue of
the content producer, in Finnish or in Swedish. The notification may
also be made in another language agreed with the content producer.
The content producer has the right to bring the matter concerning
prevention to be heard by the court referred to in Section 17 within 14
days from the receipt of the notification referred to in paragraph 1.
The provisions of paragraph 4 of Section 16 shall be observed during the
hearing of the case concerning prevention.
Section
19. Obligation by the service provider to take action to implement a
decision by the authorities
The provisions of
Sections 13-15 on the service provider's exemption from liability shall
have no effect on the service provider's obligation, under any other
law, to take necessary action to implement an order or a decision by a
court or by any other competent authority.
Chapter 5.
Notification procedure
Section 20. Prevention of access
to material infringing copyright or neighbouring right
A
holder of copyright or his/her representative may request the service
provider referred to in Section 15 to prevent access to material
infringing copyright as prescribed in this Section and in Sections
22-24. The same applies to a holder of neighbouring right and his/her
representative if it concerns material infringing this right.
A request must be presented to the content producer whose material the
request concerns. If the content producer cannot be identified or if
he/she does not remove the material or prevent access to it
expeditiously, the request may be submitted to the service provider by
notification prescribed in Section 22.
Section 21.
Service provider's contact point
The service provider must
give a contact point where the notification referred to in Section 22
and the response referred to in Section 23 may be delivered. The contact
information of the contact point must be easily and continuously
accessible.
Section 22. Form and content of the
notification
The notification must be made in writing or
electronically so that the content of the notification cannot be
unilaterally altered and that it remains available to the parties.
The notification must include:
1) the name and contact
information of the notifying party;
2) an itemisation of the
material, for which prevention of access is requested, and details of
the location of the material;
3) confirmation by the notifying
party that the material which the request concerns is, in his/her
sincere opinion, illegally accessible in the communication network;
4) information concerning the fact that the notifying party has in vain
submitted his/her request to the content producer or that the content
producer could not be identified;
5) confirmation by the
notifying party that he/she is the holder of copyright or neighbouring
right or entitled to act on behalf of the holder of the right;
6) signature by the notifying party.
The notification, which
does not meet the requirements in paragraph 1, is invalid. If the
shortcomings in the notification solely concern the information referred
to in paragraph 1(2), the service provider must, however, take
reasonable steps to contact the notifying party and to let him/her know
the shortcomings discovered.
Section 23. Notification
to the content producer and the plea
The service provider
must immediately notify the content producer of prevention of access to
the material supplied by him/her and to supply the content producer with
a copy of the notification on the basis of which prevention was made.
If the content producer considers that prevention is groundless, he/she
may get the material returned by delivering to the notifying party a
plea in writing or electronically, as prescribed in Section 22, within
14 days of receiving the notification. A copy of the plea must be
delivered to the service provider. The plea must include:
1)
the name and contact information of the content producer;
2)
the facts and other reasons under which prevention is considered
groundless;
3) an itemisation of the material for which
prevention is considered groundless;
4) signature by the
content producer.
Section 24. Returning the
material
If the plea, meeting the requirements of Section
23, is delivered within the time limit, the service provider must not
prevent the material specified in the plea from being returned and kept
available unless otherwise provided by an agreement between the service
provider and the content producer or by an order or decision by a court
or by any other authority.
Section 25. Liability to
compensate
He/she who gives false information in the
notification referred to in Section 22 or in the plea referred to in
Section 23, is liable to compensate for the damage caused.
However, there is no liability to compensate or it may be adjusted if
the notifying party had reasonable grounds to assume that the
information is correct or if the false information is only of minor
significance, when taking into account the entire content of the
notification or the plea.
Chapter 6. Supervision
and sanctions
Section 26. Supervision and the
supervising authority's right to obtain information
Compliance with Sections 7-10 and Section 21 of this Act shall be
supervised by the Communications Regulatory Authority. In addition, the
provisions of the Consumer Protection Act (38/1978) on the supervisory
authority of the Consumer Ombudsman shall be in force regarding
supervision of compliance with Sections 7-10 of the Act.
The
Communications Regulatory Authority and the Consumer Ombudsman must have
an appropriate co-operative relationship between themselves.
The secrecy provisions notwithstanding, the service provider must, on
request, give the Communications Regulatory Authority any necessary
information for supervision.
The Act on the Consumer Agency
(1056/1998) shall prescribe for the Consumer Ombudsman's right to obtain
information.
Section 27. Administrative coercive
means
If the service provider defaults on the obligation
prescribed in Sections 7-10, Section 21 or paragraph 2 of Section 26,
the Communications Regulatory Authority may request the service provider
to meet the obligation within the time limit. The Communications
Regulatory Authority may impose a penalty payment as a sanction for the
request as prescribed by the Penalty Payment Act (1113/1990).
If the service provider acts contrary to the provisions of the Consumer
Protection Act when violating the provisions of Sections 7-10, the
separate provisions on coercive means shall be in force.
Chapter 7. Entry into force
Entry into force
This Act shall enter into force on 1 July 2002.