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Hot topics for 2015 in Finnish TMT law

A Brand New Information Society Code

The Information Society Code, a major piece of legislation stringing together various existing and updated laws on communication networks and electronic communication services, has for the most part entered into force at the beginning of 2015. To a large extent, the effort has been about bundling up existing laws and streamlining the regulatory framework for electronic communications and the supply of information society services. However, on top of that, there have been some significant revisions and updates in certain areas, such as:

  • Privacy and information security obligations to cover, for example, social media: Previously, there had been some public discussion on the need to enforce mandatory and detailed privacy and information security standards on not just telecom operators but on a wider group of platform and service providers offering services for relaying private messages of Finnish users. The legislator's response was to extend certain privacy and information security related provisions to cover all providers that "convey communications". While social media platforms allowing for the exchange of private or confidential messages are an obvious target for the new provisions, the new abstract concept of conveying communications is likely to raise a number of more difficult interpretive questions. The new rules relate to the service providers' due diligence in maintaining proper information security as well as their rights and obligations in for example processing the content and metadata of the messages they convey.
  • Operating license system restructuring: In the future, new frequency bands for mobile communications will be, as a main rule, distributed via auction. In addition, the power to make decisions on radio and television programming licenses has been to a significant extent delegated to the Finnish Communications Regulatory Authority (FICORA). In cases where the available capacity for radio and television programming turns out to be scarce, the licenses will still be decided by the Government following a proposal made by the functionaries of the Ministry of Transport and Telecommunications. In such cases, the proposal and the granting will be based on what is essentially a beauty contest.
  • Consumer protection obligations of telecom operators: The Information Society Code aims to improve consumer protection in cases where consumers order and pay for products or services via their mobile phone by forcing telecommunications operators to share an extent of responsibility with companies selling such products or services. Under the new rules, in addition to the seller, consumers could turn to their telecom operator in cases of faulty products or services, or if they never receive the deliverable or are unable to cancel a service order.
  • Universal service obligations emphasized: In connection with the Information Society Code, the legislator has taken steps to improve customers' access to the so-called universal service products for broadband. The provision of such services is based on law-mandated universal service obligations set for the first time in 2010 for certain telecom operators in defined regions. Now the new provisions obligate telecom operators to more actively inform their customers and offer them universal service products.
  • Operators with Significant Market Power: The new legislation sharpens the regulation of companies holding Significant Market Power (SMP) by giving the national regulator more tools to monitor pricing. For example, FICORA has now been explicitly given the right to determine, in some circumstances, a maximum price for wholesale products of a telecommunication operator with SMP.

TV and Radio Operating Licenses Up for Major Re-Evaluation Round in 2017

Nearly all existing programming and network licenses for television and radio operations are set to expire at the end of 2016. The new programming licenses can probably be expected to be decided in accordance with the new provisions as outlined above. In the medium term, further regulatory changes and deregulation, especially, are entirely plausible. There is ongoing discussion on easing up on the content regulations in programming licenses as well as debate around various licensing models in general such as, for example, spectrum charges, auctions or combinations thereof. There are no definite plans on these as of yet, however, and the need for any new policies will be evaluated by a new government after the upcoming parliamentary elections in April 2015. In any case, lobbying work in relation to the upcoming licenses, especially since beauty contest are to be expected, should be started in 2015.

Public Sector IT Procurement and Open Data

Early 2015 will mark the entry into force of new standard contract terms for public IT procurement. The earlier recommendation, named JIT 2007, has been renewed during 2013 and 2014. The new recommendation applying to all government entities as well as all municipalities will likely enter into force in February 2015 under the name JIT 2015. The update represents a fairly thorough rewrite with completely novel contract terms for agile projects, software-as-a-service purchases and procurement under open source licensing.

As regards opening public sector data reserves for re-use, a new licensing recommendation was passed in December 2014. Under the said recommendation, the recommended license for any open publication of public sector data shall be the official Finnish translation of the Creative Commons CC-BY 4.0 license.

Online Surveillance on the Agenda

Online surveillance has been a highly debated topic in early 2015 after a Ministry of Defence working group delivered its report to the Defence Minister, proposing new powers for intelligence gathering activities to be granted to the Finnish Security Intelligence Service (Supo) and the Finnish Defence Forces. The most controversial aspect of the report is a proposed mandate for the said authorities to intercept communications transmitted through Finnish data cables in order to counter serious threats to national security. A dissenting opinion was filed by the Ministry of Transport and Communications, sharply criticising the working group of purpose-oriented analysis and a failure to adequately take into account the constitutional rights of Finnish citizens.

The discussion has mainly revolved around the question of whether Finland should profile itself as the "Switzerland of data protection and data security", or whether some form of mass surveillance would improve the Finnish security landscape, outweighing any potential privacy concerns. The working group report may or may not lead to a government proposal for legislation – the upcoming parliamentary election in April may also play a role. If the plan moves forward, one can expect further heated debate as well as constitutional hurdles potentially delaying the legislation for several years.