In 1999, an unknown person had posted an advertisement on an internet dating site concerning K.U. without his knowledge. The advertisement  included a detailed description of  his physical characteristics as well as further personal information, including contact details. The applicant first became aware of the announcement when he received an email from a man offering to meet him. 

Police investigations were unsuccessful because the service provider refused to provide information based on the confidentiality of telecommunications as defined under Finnish law. In a 2001 decision, the 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 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.

Although national law primarily focused on the case as an act 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 European Court of Human Rights considered that the act of posting the ad should be considered a criminal act which had resulted in a minor being a target for paedophiles. It stated that such acts called for a criminal-law response and that effective deterrence had to be reinforced through adequate investigation and prosecution, especially in the case of children and other vulnerable individuals.

In its amicus curiae brief, the Helsinki Foundation for Human Rights drew attention to the deficiencies in relevant legislation currently in force in Poland, and encouraged the Court to set out guidelines to develop relevant legislation.

Indeed, the Court found that Finnish 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, but had at the time not yet been in place, 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.

Concerning the standards of necessary legislation, the Court stated that although freedom of expression and confidentiality of communications are primary considerations and users of telecommunications and Internet services must have a guarantee that their own privacy and freedom of expression will be respected, this right is not absolute. Such guarantees must 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. This exception also applies to the present case.

Although the applicant had also brought a claim under Article 13 (right to effective remedy), the Court considered it unnecessary to examine, given its findings under Article 8.

Adam Bodnar, Dorota Pudzianowska

Helsinki Foundation for Human Rights