In Finland, unsolicited commercial communications, also referred to as spamming, are regulated by the Act n. 565 on the Protection of Privacy and Data Security in Telecommunications that came into force on July 1, 1999 (the “Privacy Protection Act.”) Spamming is also regulated on the European level by European Directive 2002/58/EC on Privacy and Electronic Communications that came into force on July 31, 2002 (the “Electronic Privacy Directive.”)
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Section 13 of the electronic Privacy Directive, which provides for a general legal framework on spamming, generally adopts the opt-in approach, i.e.: spamming is only permitted when the recipient gives his prior consent to receiving unsolicited emails. The Privacy Protection Act also generally adopts the opt-in approach but only when individuals are concerned. The Privacy Protection Act is an implementation of the EU Directive 97/7/EU, which tenth Article forbids the use of automatic means of contacting the consumer in direct marketing unless the consumer has given prior permission, and which fourteenth Article gives Member States the right to implement stricter measures. Finland has used this possibility to explicitly forbid e-mail solicitations addressed to individuals.
Q: What are the main provisions of the Electronic Privacy Directive?
Pursuant to Section 13 of the Electronic Privacy Directive, the following rules apply to spamming: Opt-in: the use of spamming may only be allowed in respect of subscribers who have given their prior consent. Opt-out: however, opt-out applies when a website obtains from its customers their email addresses in the context of the sale of a product or a service. In this context, this website may use these addresses for direct marketing purposes of its own similar products or services provided the customers are given the opportunity to object, free of charge and in an easy manner, to such use of electronic contact details. This objection should be allowed when the details are collected and on the occasion of each message when the customer has not initially refused such use. In any other cases, Member States may choose between opt-in and opt-out to establish the consent of the subscriber. The practice of spamming disguising or concealing the identity of the sender, or without a valid address the recipient can send a request that such communication cease, is prohibited.
Q: What rules apply to spamming under Finnish law?
Pursuant to Section 21 of the Privacy Protection Act, applying to telecommunications in general and also including spam, the following fundamental provisions must be complied with: Individuals recipients: opt-in principle. As a general rule, telecommunications may not be used for direct marketing without the prior consent of the subscriber if the calls to the called subscriber are made by means of automated calling systems or facsimile machines. Corporate recipients: opt-out approach. In general, telecommunications may be used for direct marketing by means of automatic systems if a subscriber who is not a natural person has not forbidden it.
Q: What sanctions apply in case of violation of the Privacy Protection Act?
Pursuant to Section 27-3 of the Privacy Protection Act, anyone who willfully uses telecommunications for direct marketing in violation of above-mentioned Section 21 will be sentenced to a fine, unless the act is subject to a more severe punishment under another provision. The same Article further provides that no punishment will be ordered if the breach is minor.
Q: Should Finnish law apply to spammers located outside Finland?
Yes. In direct marketing matters inside the EU, senders are required to observe the law of the target country.
Alain Megias, IBLS