CEDH · CASELAW;CLIN;ENG — 2 décembre 2008

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Finland - 2872/02 Judgment 2.12.2008 [Section IV] Article 8 Article 8-1 Respect for private life Failure to compel service provider to disclose identity of person wanted for placing an indecent advertisement about a minor on an Internet dating site: violation   Facts : In 1999 an unknown individual posted an advertisement of a sexual nature on an Internet dating site in the name of the applicant, who was twelve years old, without his knowledge. The advertisement gave details of the applicant's age, year of birth and physical characteristics and stated that he was looking for an intimate relationship with a male. It also contained a link to his web page where his picture and telephone number could be found. The applicant became aware of the advertisement when he received an e-mail from a man offering to meet him. A complaint was made to the police but the service provider refused to disclose the identity of the person who had placed the advertisement as it considered itself bound by confidentiality rules. A district court subsequently refused a request by the police under the Criminal Investigations Act for an order requiring the service provider to divulge the advertiser's identity after finding that there was no explicit legal provision in cases concerning less serious offences, such as calumny, which could be used to compel a service provider to disregard professional secrecy and disclose such information. The court of appeal upheld that decision and the Supreme Court refused leave to appeal. Law : Although domestic law saw the applicant's case in terms of calumny, the Court preferred to highlight the effects on his private life, given the potential threat to his physical and mental welfare and his vulnerable age. The posting of the Internet advertisement about the applicant was a criminal act which had resulted in a minor being a target for paedophiles. Such conduct called for a criminal-law response and effective deterrence had to be reinforced through adequate investigation and prosecution. Children and other vulnerable individuals were entitled to protection by the State from such grave interferences with their private life. The possibility of obtaining damages from a third party, in this instance the service provider, was not a sufficient remedy. What was required was the availability of a remedy enabling the actual offender – in this instance, the person who had placed the advertisement – to be identified and brought to justice, and the victim to obtain financial reparation from him. The Government could not argue that they had not had the opportunity to put in place a system to protect children from being targeted by paedophiles via the Internet as the widespread problem of child sexual abuse and the danger of the Internet being used for criminal purposes were well-known when the incident took place. Although freedom of expression and confidentiality of communications were primary considerations and users of telecommunications and Internet services had to have a guarantee that their own privacy and freedom of expression would be respected, such guarantee could not be absolute and had to yield on occasion to other legitimate imperatives, such as the prevention of disorder or crime or the protection of the rights and freedoms of others. The legislature should, therefore, have provided a framework for reconciling those competing interests. Although such a framework had subsequently been introduced through the Exercise of Freedom of Expression in Mass Media Act, it had not been in place at the relevant time. The State had thus failed to protect the applicant's right to respect for his private life by giving precedence to the confidentiality requirement over his physical and moral welfare. Conclusion : violation (unanimously). Article 41 – EUR 3,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes