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Digitisation of letter post is legally problematic

Itella's trial was nevertheless not unlawful


In the assessment of Deputy-Ombudsman Jussi Pajuoja, opening and digitising letters relating to health and social welfare, banks and political parties are not unproblematic. He has asked the Ministry of Transport and Communications and the Finnish Communications Regulatory Authority to adopt a position on the matter if the intention is to continue with a digitisation trial launched by Itella Oyj (formerly Finland Post).

Porvoo trial based on agreement

In the spring of 2010 Itella launched a geographically limited, voluntary trial in the village of Anttila in Porvoo. In the experiment, letter post for the sparsely populated area is sent to customers scanned into electronic form.

On the basis of an agreement with the mail recipient, Itella delivered ordinary 1st- and 2nd-class letters to its subsidiary Itella Information Oy. The subsidiary opened and digitised the letters, if it was possible. Digitisation was done on premises to which only designated employees who had signed a confidentiality agreement had access. After digitisation, the letters were resealed and sent again to the recipient.
The letters were sent electronically to the recipient's personal NetPosti service. Items excluded from digitisation were delivered normally in the post. They included circulars, letters of unsuitable size and newspapers.

Digitisation trial meant interfering with secrecy of the mail

The Constitution safeguards everyone protection of confidential communications vis-à-vis outsiders. Confidentiality of the mail is a right that belongs to both the party who sends a letter and the party who receives it. Because a closed letter was opened for digitisation during Itella's transport process, the trial meant an intervention in this fundamental right.
 
The trial was based on a provision in the Postal Services Act allowing a mail recipient to agree with a postal company on exceptional distribution arrangements. In the trial, the recipient contracted for mail items to be sent to Itella's subsidiary, which was at the same time given consent to open and digitise letters.

The Deputy-Ombudsman found that the trial was not downright unlawful. It was based on regulation of a general nature and also on consent given to a party other than the postal company. However, it can be asked whether the special arrangement was used only as a means of circumventing the absolute ban on opening letters that applies to a postal company.

Consent to a trial must be genuine

It was not possible in the trial to limit the mail despatches to be digitised, for example on the basis of sender. Thus the item to be digitised was not defined in advance and, from the customer's perspective, it was also unpredictable. The sender, in turn, was not informed at any stage that the post they had sent would possibly be opened during its conveyance process.

Thus, for example, letters to and from social welfare and health care bodies or political organisations that contained sensitive information may have been among those that were opened and digitised.
Those participating in the trial were told in advance that digitisation applies to all letter post. In the Deputy-Ombudsman's assessment, however, it was uncertain whether those participating in the trial had genuinely grasped that consent to open can apply also to post of a very sensitive nature.
Although it was announced prior to an agreement being made that also bank letters would be digitised, this became a cause of concern during the trial and a decision was made to end it. What was most problematic was opening letters that contained debit cards, personal identification numbers and/or online banking IDs.

Also benefits from trial

Mail recipients also derived benefits from the trial. By combining conventional and electronic mail distribution, it is possible to promote genuine equality between mail recipients. For example, when an area is one where the Postal Services Act allows delivery to be made at less frequent intervals, the standard of service improves.

Additional info will be provided by Senior Legal Adviser Mikko Sarja, tel. +358(0)9 4321.