4.6.2009
In the view of Deputy-Ombudsman Jukka Lindstedt, legislation on measures to prevent child pornography is problematically open to interpretation. Hardly anything to find fault with was observed in the actions of the police's National Bureau of Investigation; instead, the actual problems are associated with the legislation itself. Over 30 complaints concerning the Act in question and its application were made to the Ombudsman.
The Act requires the National Bureau of Investigation to maintain a list of Internet sites that contain child pornography. The National Bureau also gives information from the list to telecommunications companies, which in turn voluntarily decide what to do on the basis of the information they receive. Thus it is not the police who make decisions on filtering.
According to a report received, some telecommunications companies have given their customers the option of not using filters that block child pornography sites, whilst others have not installed them at all. Despite this voluntariness, a decision by the National Bureau to place a site on the prevention list has real implications from the perspective of, inter alia, freedom of expression, i.e. the right to publish and receive information.
The Deputy-Ombudsman did not concur with the complainants' views that the actions of the National Bureau constitute the advance censorship that the Constitution prohibits. In his opinion, however, important questions have been left to the parties applying the Act in practice to resolve. If something or other is not regulated in an Act, the discretionary powers that the parties applying the legislation enjoy generally broaden. The officials at the National Bureau have exercised these discretionary powers. The only criticism of the national Bureau that the Deputy-Ombudsman made related to a few errors of carelessness in compiling the list.
The Deputy-Ombudsman sees the purpose of the Act as being undeniably good. Combating child pornography and preventing its spread are very important. However, a question that arises is whether, assessing the matter especially from the perspective of the implementation in practice of freedom of speech, the Act should contain provisions that safeguard better than is currently being done the protection under the law of parties who have been affected by prevention measures. Especially the status of Finnish sites, the preciseness of filtering and the significance of linking as well as the right of appeal have been left open in the Act.
The Deputy-Ombudsman asked the Ministry of Transport and Communications to inform him, by 4.9.2009, whether, in its opinion, there is a need to revise the legislation in question or how it believes the interpretation issues that have been brought up can otherwise be appropriately resolved.
Decision by Deputy-Ombudsman Jukka Lindstedt, dnro 1186/2/09
Additional information will be provided by Senior Legal Adviser Juha Haapamäki, tel. + 358 (0)9 432 3334.
