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ECHR rules on identifying serious privacy infringers

17 December, 2008

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

On 2 December 2008, the European Court of Human Rights (ECHR) gave its judgement on the case K.U. v. Finland, considering that Article 8 of the Convention asks for national laws that will protect people from serious privacy infringements on the Internet, but at the same time demands a legal framwork that permits the identification and prosecution of offenders, respecting digital rights.

In this case brought to the ECHR an unknown person or persons placed an advertisement on a dating site on the Internet in the name of the applicant, who was 12 years old at the time, without his knowledge. The advertisement mentioned his age and year of birth, gave a detailed description of his physical characteristics, a link to the web page he had at the time which showed his picture, as well as his telephone number, which was accurate save for one digit. In the advertisement, it was claimed that he was looking for an intimate relationship with a boy of his age or older "to show him the way". The applicant became aware of the announcement on the Internet when he received an e-mail from a man, offering to meet him and "then to see what you want".

The applicant's father requested the police to identify the person who had placed the advertisement in order to bring that person to court. The service provider, however, refused to reveal the identity of the holder of the IP address in question, considering itself bound by the confidentiality of telecommunications as defined by law. The Finnish courts could not help the father, considering that the law in force at that time provided for this information to be revealed only in respect of the criminal offences.

Therefore the applicant asked the ECHR to judge if the fake ad did not consitute a violation of his right to a private life under Art. 8 of the ECHR and if he had not been denied an effective remedy for that violation under Art. 13 ECHR.

The court held that Finland was in breach of its obligations under Article 8, because it didn't provide an effective criminal sanction for the violation of the applicant's rights. Consequently the court did not continue to consider the issue under Article 13.

The court considers that serious privacy infringements need to be considered by the legal framework of the states: "While the choice of the means to secure compliance with Article 8 in the sphere of protection against acts of individuals is, in principle, within the State's margin of appreciation, effective deterrence against grave acts, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions ."

ECHR concludes by explaining that Article 8 should be interpreted in order to provide the legal framework to identify wrongdoers and bring them to justice, respecting the human rights on the Internet (freedom of expression and confidentiality of communications):

"The Court considers that practical and effective protection of the applicant required that effective steps be taken to identify and prosecute the perpetrator, that is, the person who placed the advertisement. In the instant case such protection was not afforded. An effective investigation could never be launched because of an overriding requirement of confidentiality. 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, such guarantee cannot be absolute and 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. "

TJ McIntyre from EDRi-member Digital Rights Ireland is commenting on the text that raises a number of questions on the practical implications of the case: "The court points out that it is dealing with a "grave" criminal offence, which leaves open the question of whether the reasoning would apply to less serious offences or to civil matters only. It also limits itself to requiring a national balancing framework between the rights of an alleged victim and the general rights of privacy in communications and freedom of expression - presumably within that framework states will enjoy a significant margin of appreciation. On the other hand, it rejects the argument that other systems (such as notice and takedown or intermediary liability) can suffice, insisting instead on requiring identification of users. It also focuses on the "ability of the victim to obtain financial reparation", which seems to extend the reasoning to civil matters also."

Judgement Case of K.U. v. FINLAND (2.12.2008)

Identifying Individuals in Internet Iniquity: ECHR rules on naming wrongdoers (2.12.2008)

K.U. v. Finland: No Data Retention Obligation (15.12.2008)



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