In June 2015, a revision of the provisions concerning confidentiality of sources took place in the context of an overall modernization of procedural legislation. The new provisions enter into force on 1 January 2016. Regarding the substance, much was not changed as the amendments rather tackle the numbering and division of some provisions. However, new provisions were also introduced while a few changes appear especially interesting to journalists. This article focuses only on these particular dimensions of the reform.
Provisions on the protection for and breaking of the confidentiality of sources have been scattered in Finnish law. This continues to be the case – possibly even more so with the introduction of explicit provisions on the issue in existing laws, such as the Administrative Judicial Procedure Act (586/1996).
The right to protect sources of information is provided in Section 16 of the Act on the Exercise of Freedom of Expression in Mass Media (460/2003; FEA) for originators of messages, publishers, and program providers, and those in their service while publishers and program providers are also entitled to keep secret the identity of the originator of the message. The protection of confidentiality is provided to any originator of a message in the form of a legal right as opposed to a duty. No amendments were introduced in this regard. It must be noted that Section 14 of the Guidelines for Journalists, which are a self-regulatory instrument in the field of media, renders journalists entitled and duty bound to conceal the identity of sources of information as agreed with the source. Where “highly negative publicity” is created the editorial office should publicize the methods to assure the reliability of anonymous sources (Sec. 14). Section 16(3) FEA notes that the duty to reveal information under confidentiality, in pre-trial investigation or during a trial, is regulated separately.
The newly introduced Section 20(1) of Chapter 17 of the Code of Judicial Procedure (4/1734; CJP) provides that originators of messages, publishers, and program providers may refrain from testifying on the identity of their sources, and on the identity of the creators of messages. However, an obligation to testify may be imposed where the prosecuted crime has a maximum penalty of at least six years’ imprisonment or concerns a punishable breach of a duty of non-disclosure (Section 20(2) CJP). Previously, attempt and accessory were mentioned with regard to the crimes, while the wording concerning the breach of duty was somewhat amended. A substantive amendment to the CJP was made in the form of an express provision on the scope of the duties or rights to refrain from testifying: Section 17:9(3) CJP notes that they do not apply to information the unjustified obtaining, disclosure, or utilization of which is prosecuted. According to the Government bill (HE 46/2014 vp, 59), the new provision may find its application in cases concerning industrial espionage or secrecy offences.
According to Section 8(1) of Chapter 7 of the Criminal Investigation Act (805/2011; CIA), the duties and rights of a witness to refrain from testimony are in principle similar to the ones provided in specified provisions of Chapter 17 CJP, including 17:20. However, notwithstanding paragraph 1, a witness is obliged to testify, among others, where the investigated crime, or attempt or accessory thereto, has a maximum penalty of at least six years of imprisonment and the court could oblige testimony pursuant to Section 17:20(2) CJP. The CIA includes an obligation for witnesses to testify where the investigated crime is the unlawful obtaining, disclosure, and utilization of information, excluding, however, originators of messages, publishers, and program providers. Here, the Government bill (HE 46/2014 vp, 144-146) points to the confidentiality of sources and refers to a Committee Report of 2009 which promotes changes to the legislation with regard to suspected secrecy offences, in cases where an interference would have been indispensable and justified due to the severity of the offense. This proposal was not realized in the past and nothing was found to support such amendments in the present. In 2009, the Council for Mass Media in Finland (CMM), a self-regulatory body interpreting good journalistic practice, also expressed its negative view on the proposal to weaken the confidentiality of sources (4152/L/09).
Finally, the new Section 7:3 of the Coercive Measures Act (806/2011; CMA) forbids confiscation and copying of material for evidence where there is a duty or right to refrain from testimony pursuant to specified provisions of the CJP, including the right of publishers and program providers to refrain from testifying on the identity of their sources. The material must be in the possession of the persons awarded the right to refrain from testimony or in the possession of the person for whom the duty or right has been enacted. However, exceptions to the ban apply (7:3(3), points 2-3 CMA) on one hand where originators of messages, publishers, and programme providers consent to the confiscation or copying of the material, and on the other hand where the investigated crime is one with the maximum penalty of at least six years’ imprisonment and the court could oblige the witness to testify pursuant to 17:20(2) CJP. Previously, the law only contained the latter exception while the wording of the provisions was somewhat different. The new provisions enable coercive measures where persons referred to in the FEA, such as publishers, give their consent. Moreover, no ban on confiscation and copying exists where the investigated crime is such as to exclude a duty or right to refuse testimony in trial pursuant to sec. 17:9(3) CJP. However, this does not apply to material in the possession of a person referred to in sec. 17:20(1) CJP, such as a publisher. The provision is in unison with the chosen approach to secrecy offences.
Alén-Savikko, Anette: Amended provisions on confidentiality of sources. IRIS 2015-8:1/14
Esitutkintalain, pakkokeinolain ja poliisilain kokonaisuudistus. Esitutkinta- ja pakkokeinotoimikunnan mietintö [Committee Report: Reform of the legislation on pre-trial investigation and coercive measures](2009:2)
Laki oikeudenkäymiskaaren muuttamisesta (732/2015); Law amending the Code of Judicial Procedure (732/2015)
Laki esitutkintalain muuttamisesta (736/2015); Law amending the Criminal Investigations Act (736/2015)
Laki pakkokeinolain muuttamisesta (737/2015); Law amending the Coercive Measures Act (737/2015)
Hallituksen esitys eduskunnalle oikeudenkäymiskaaren 17 luvun ja siihen liittyvän todistelua yleisissä tuomioistuimissa koskevan lainsäädännön uudistamiseksi (HE 46/2014 vp); Government bill on the reform of Chapter 17 of the Code of Judicial Procedure and related legislation on presentation of evidence in general courts (HE 46/2014 vp): unofficial English translation
Laki sananvapauden käyttämisestä joukkoviestinnässä (460/2003); Act on the Exercise of Freedom of Expression in Mass Media (460/2003): unofficial English translation
Journalistin ohjeet; Guidelines for Journalists in English (operative from 1.1.2014)
Statement of the CMM (4152/L/09); available in Finnish (22.9.2015)