Data Protected - Finland

Contributed by Hannes Snellman Attorneys Ltd

Last updated March 2020

General | Data Protection Laws

National Legislation
National Supervisory Authority
Scope of Application
Personal Data
Sensitive Personal Data
Data Protection Officers
Accountability and Privacy Impact Assessments
Rights of Data Subjects
Security
Transfer of Personal Data to Third Countries
Enforcement

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National Legislation
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General | Data Protection Laws

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National Legislation

General data protection laws

The General Data Protection Regulation (EU) (2016/679) (“GDPR”).

The GDPR is supplemented by a new generally applicable “Data Protection Act” (Tietosuojalaki (1050/2018)) which repeals the old Personal Data Act (523/1999), as well as by specific legislation that is applicable to certain types of processing of personal data.

Most notably, the processing of employee personal data is governed by the Act on the Protection of Privacy in Working Life (759/2004). Some of the national specific legislation is still expected to be updated.

Entry into force

The GDPR has applied since 25 May 2018.

The Data Protection Act applies from 1 January 2019. 

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National Supervisory Authority

Details of the competent national supervisory authority

The Finnish Data Protection Ombudsman and his Office act as the national data protection authority and as the national supervisory authority under the GDPR (the “Ombudsman”). The Ombudsman is supported by two Assistant Data Protection Ombudsmen that have equivalent powers with the Ombudsman. In addition, the Data Protection Act provides for establishment of a Panel of Experts (asiantuntijalautakunta) to give opinions on the law at the request of the Ombudsman.

The Office of the Data Protection Ombudsman
P.O. Box 800
00521 Helsinki
Finland 

www.tietosuoja.fi

The Ombudsman represents Finland on the European Data Protection Board.

Notification or registration scheme and timing

There is no obligation to notify regulators of any processing under the GDPR. However, controllers and processors must keep a record of their processing and make it available to their supervisory authority on request (subject to limited exemptions).

The Act on Electronic Communications Services (917/2014) (formerly the Information Society Code) requires corporate subscribers (i.e. a legal person who is party to an agreement concerning the provision of a communications service or an added value service for a purpose other than telecommunications operations), to inform the Ombudsman in advance of processing traffic data for certain purposes. 

Exemptions to notification

Not applicable.

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Scope of Application

What is the territorial scope of application?

The GDPR applies to the processing of personal data in the context of the establishment of a controller or processor in the EU.

It also contains express extra-territorial provisions and will apply to controllers or processors based outside the EU that: (i) offer goods or services to individuals in the EU; or (ii) monitor individuals within the EU. Controllers and processors caught by these provisions will need to appoint a representative in the EU, subject to certain limited exemptions.

The European Data Protection Board has issued Guidelines on the territorial scope of the GDPR (3/2018).

Under the Data Protection Act, the processing of personal data is governed by Finnish laws if the controller’s place of business is located in Finland, and if the processing is carried out in the context of the activities of an establishment of a controller or processor in the EU. 

Is there a concept of a controller and processor?

Yes. The GDPR contains the concept of a controller, who determines the purpose and means of processing, and a processor, who just processes personal data on behalf of the controller.

Both controllers and processors are subject to the rules in the GDPR, but the obligations placed on processors are more limited

Are both manual and electronic records subject to data protection legislation?

Yes. The GDPR applies to both electronic records and structured hard copy records.

Are there any national derogations?

The GDPR does not apply to law enforcement activities which are instead subject to the Law Enforcement Directive. The GDPR also does not apply to areas of law that are outside the scope of Union law, such as national security, and does not apply to purely personal or household activity.

Under the Data Protection Act, the rules in the GDPR are extended to cover to activities that fall outside the scope of Union law (with the exception of the lead authority and consistency mechanism). This is to make the application of the GDPR simpler.

The Data Protection Act also takes full advantage of the national derogations available under the GDPR. Several provisions of the GDPR are not applied with respect to the processing of personal data solely for journalistic purposes or academic, artistic and literary expression purposes, including certain rights of data subjects and the controls on processing of sensitive personal data.

Similarly, the Data Protection Act includes national derogations with respect to processing of personal data for scientific or historical research purposes or statistical purposes, including the provisions of the GDPR relating to right of access, right to rectification, right to restriction of processing and right to object, as set out below. 

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Personal Data

What is personal data?

Personal data is information relating to an identified or identifiable natural person.

This is a broad term and includes a wide range of information. The GDPR expressly states it includes online identifiers such as cookies.

Is information about legal entities personal data?

No. However, information about sole traders and partnerships is likely to be personal data.

What are the rules for processing personal data?

All processing of personal data must comply with all six general data quality principles. Personal data must be: (i) processed fairly, lawfully and transparently; (ii) collected for specific, explicit and legitimate purposes and not processed in a manner incompatible with those purposes; (iii) adequate, relevant and not excessive; (iv) accurate and, where necessary, up to date; (v) kept in an identifiable form for no longer than necessary; and (vi) kept secure.

The processing of personal data must also satisfy at least one condition for processing personal data. These conditions are that the processing is: (a) carried out with the data subject’s consent; (b) necessary for the performance of a contract with the data subject; (c) necessary for compliance with a legal obligation; (d) necessary in order to protect the vital interests of the data subject; (e) necessary for the public interest or in the exercise of official authority; or (f) necessary for the controller’s or recipient’s legitimate interests, except where overridden by the interests of the data subject.

These rules are almost identical to the core requirements for processing personal data in the old Data Protection Directive. The European Data Protection Board has issued Guidelines on the performance of a contract processing condition for online services (2/2019).

Under the Data Protection Act, the principles of data minimisation, accuracy, and storage limitation do not apply to processing of personal data solely for journalistic purposes or academic, artistic and literary expression purposes.

The Data Protection Act clarifies that processing necessary for the public interest or in the exercise of official authority (point (e) above) includes: (i) processing describing a person’s role, tasks or the performing of such role or tasks in a public entity, business activities, organisational activities or other similar activities, insofar as the objective of the processing is in public interest and the processing is proportional in relation to its justified objective; (ii) processing that is necessary and proportionate for the performance of a task carried out in the public interest; (iii) processing that is necessary for scientific or historical research purposes or statistical purposes and is proportionate to the legitimate interest pursued in the public interest; or (iv) processing of personal data included in research material, cultural heritage material and descriptions of such material for archiving purposes is necessary and proportionate for the aim pursued in the public interest and for data subjects’ rights. 

Are there any formalities to obtain consent to process personal data?

The requirements for consent under the GDPR are strict. 

To be valid, consent must be in clear and plain language and, where sought in writing, separate from other matters. Consent must be based on affirmative action so pre-ticked boxes are not acceptable. Consent might not be valid if: (i) there is any detriment to the data subject for refusing; (ii) there is an imbalance of power; (iii) consent for multiple purposes is bundled together; or (iv) the consent is a condition of entering into a contract. Finally, consent can be withdrawn at any time.

In practice, other processing conditions should be relied on where possible. Consent will only be an appropriate processing condition if the individual has a genuine choice over the matter, for example, whether to be sent marketing materials. 

The Article 29 Working Party has issued Guidelines on Consent (WP259).

Are there any special rules when processing personal data about children?

Consent from a child in relation to online services will only be valid if authorised by a parent. A child is someone under 16 years old, though Member States may reduce this age to 13.

In Finland, the age at which a child can provide a valid consent in relation to information society services is 13 years.

The age limit applies only for consent given in relation to information society services offered directly to a child. Should the consent be obtained for any other kind of processing (such as use of photographs or direct marketing purposes) the general rules of the Finnish Act on Child Custody and Right of Access (361/1983) apply. The main rule is that the person having custody of a child has authority, unless otherwise provided by law. However, a child can represent him/herself (i.e. give a consent) in matters where it is appropriate considering the child's age, level of development and the quality of the matter. As a rule of thumb in “ordinary matters” a 15-year old child may represent him/herself. Younger children may be able to give consent in other cases but this should be evaluated on a case-by-case basis. 

Are there any special rules when processing personal data about employees?

The GDPR allows Member States to implement more specific national rules governing the processing of personal data about employees. It may also be possible to process special category personal data where it is necessary for a legal obligation in the field of employment law. 

Processing of personal data in the context of employment is governed by the Act on the Protection of Privacy in the Working Life (759/2004, “PWLA”). The GDPR and the PWLA apply simultaneously in the context of employment. The Data Protection Act also applies unless provided otherwise by the PWLA. Further, the Act on Electronic Communications Services (917/2014, “ECS”) is a lex specialis in relation the PWLA, and governs employee privacy in the context of electronic communications. These national rules impose various restrictions and conditions on employers.

For example, under the PWLA, employers may only collect personal data which is directly necessary for the employment relationship and: (i) relates to the management of the rights and obligations of the parties to the employment relationship; (ii) relates to the benefits offered by the employer to the employee; or (iii) arises from the special nature of the work concerned.

Further, employee consent is generally required in order to collect employee personal data from a third party. Accessing employee emails and implementing CCTV or other means of technical monitoring are also subject to strict conditions.

Under the ECS, monitoring of the content of employee electronic communications is generally prohibited. The monitoring of traffic data is subject is subject to strict conditions.

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Sensitive Personal Data

What is sensitive personal data?

Special category data is personal data consisting of racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.

The inclusion of genetic and biometric data is new and an extension to the types of sensitive personal data in the Data Protection Directive.

Information about criminal offences is dealt with separately and is subject to even tighter controls.

Are there additional rules for processing sensitive personal data?

Special category data may only be processed if a condition for processing special category data is satisfied. A condition arises where the processing: (a) is carried out with the data subject’s explicit consent; (b) is necessary for a legal obligation in the fields of employment, social security and social protection law; (c) is necessary to protect the vital interests of the data subject or another person where the data subject is unable to give consent; (d) is carried out by a non-profit-seeking body and relates to members of that body or persons who have regular contact; (e) relates to data made public by the data subject; (f) is necessary for legal claims; (g) is for reasons of substantial public interest under EU or Member State law; (h) is necessary for healthcare reasons; (i) is necessary for public health reasons; or (j) is necessary for archiving, scientific or historical research purposes or statistical purposes and is based on EU or Member State law.

According to the Data Protection Act, sensitive personal data may be processed in the course of specified activities, provided that certain procedures are satisfied.

For example, sensitive personal data relating to the insured and the claimant may be processed by an insurance company where the data processed relates to health, sickness or disability or treatment and similar measures received, and such data is received in the course of insurance activities and is necessary to evaluate the insurance company’s liability. The processing of sensitive personal data is also allowed for scientific or historical research purposes or statistical purposes.

In addition, the Data Protection Act allows processing of sensitive personal data and data relating to criminal offences for solely journalistic purposes or academic, artistic and literary expression purposes. Sensitive personal data can also be processed for a few other specified activities such as provision of health care services and social welfare services.

A review of national special legislation, including conditions for the processing of sensitive personal data, is in progress

Are there additional rules for processing information about criminal offences?

It is only possible to process personal data relating to criminal convictions or offences if: (a) it is carried out under the control of official authority; or (b) when the processing is authorised by EU or Member State law providing for appropriate safeguards for the rights and freedoms of data subjects.

In addition to the conditions above, information on criminal convictions or offences may, provided that certain procedures are satisfied, be processed if that processing is: (i) necessary for the establishment, exercise, defence or judgment of a legal claim; (ii) processed in the course of insurance activities by an insurance company and the data is necessary to evaluate the insurance company’s liability; (iii) imposed by law or directly attributable to a statutory duty of the controller; or (iv) carried out for scientific or historical research purposes or statistical purposes.

The Act on Processing of Personal Data in Connection with Criminal Proceedings and Maintenance of National Security (HE 31/2018 vp) implements the Law Enforcement Directive and provides more detailed rules for processing information on criminal offences by authorities. 

Are there any formalities to obtain consent to process sensitive personal data?

Consent to process sensitive personal data must be explicit. The general restrictions on consent, set out above, will also apply. This suggests a degree of formality, such as ticking a box containing the express words “I consent”. It is unlikely explicit consent could be obtained through a course of conduct.

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Data Protection Officers

When must a data protection officer be appointed?

Both controllers and processors must appoint a data protection officer if: (i) they are a public authority; (ii) their core activities consist of regular and systematic monitoring of data subjects on a large scale; or (iii) their core activities consist of processing special category personal data on a large scale (including processing information about criminal offences).

Data protection officers must also be appointed where required by national law. In Finland, certain entities which are subject to the public interest, such as social welfare and health care service providers, must appoint a data protection officer.

It should be noted that the Data Protection Act does not provide any exemptions to this obligation, for example with regards to processing for journalistic purposes or academic, artistic or literary expression.

What are the duties of the data protection officer?

The data protection officer must be involved in all data protection issues and cannot be dismissed or penalised for performing their role. The data protection officer must report directly to the highest level of management. Details of the data protection officer must be communicated to the relevant supervisory authority. 

The Article 29 Working Party has issued Guidelines on Data Protection Officers (WP243).

The Data Protection Act provides that a data protection officer may be appointed as a measure to safeguard data subjects’ rights when processing sensitive personal data or personal data relating to criminal convictions and offences. 

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Accountability and Privacy Impact Assessments

Is there a general accountability obligation?

The GDPR adds a new general accountability obligation under which you must not only comply with these new rules, but also be able to demonstrate you comply with them. This means ensuring suitable policies are in place supported by audit and training.

Are privacy impact assessments mandatory?

A privacy impact assessment must be conducted where “high risk” processing is carried out. This includes: (a) systematic and extensive profiling that produces legal effects or significantly affects individuals; (b) processing on a large scale either special categories of personal data or personal data relating to criminal convictions and offences; and (c) systematic monitoring of a publicly accessible area on a large scale (e.g. CCTV). Where the assessment indicates the risk cannot be mitigated, the controller must consult the relevant supervisory authority.

The Article 29 Working Party has subsequently issued Guidelines on Data Protection Impact Assessments (WP 248). It suggests there are nine criteria to consider to determine whether to conduct a privacy impact assessment, and that an assessment should be made if two or more of those criteria are met. This is arguably wider than the criteria set out in the paragraph above

In Finland, the Ombudsman has drawn up a list of “high risk” processing. According to the list, a data protection impact assessment is required for: (i) processing of personal data in whistleblower systems; (ii) when personal data is collected from a source other than the individual, no privacy notice is given because it would involve disproportionate effort and least one of the criteria below apply; and (iii) when (a) biometric data, (b) genetic data, or (c) location data are processed in conjunction with at least one of the criteria below.

The criteria referred to in the paragraph above are that: (i) personal data is processed for the purpose of evaluation or scoring; (ii) personal data is processed for the purpose of automated decision-making with legal or similar significant effect; (iii) data subjects are systematically monitored; (iv) in connection with (ii) or (iii)(c) above, sensitive personal data or personal data of a highly personal nature is processed or revealed by the processing; (v) personal data is processed on a large scale; (vi) datasets are matched or combined; (vii) personal data concerning vulnerable data subjects is processed; (viii) new technological or organisational solutions are used or applied innovatively; or (ix) the processing may prevent data subjects from exercising a right or using a service or a contract.

It should be noted that the list is not exhaustive. However, as described above, the Data Protection Act also provides several derogations with respect to the processing of personal data solely for academic, artistic and literary expression purposes. In these cases, a data protection impact assessment is not required. 

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Rights of Data Subjects

Privacy notices

controller must provide data subjects with a privacy notice setting out how the individual’s personal data will be processed. The privacy notice must contain the enhanced transparency information.

The Article 29 Working Party has issued Guidelines on Transparency (WP260).

In Finland, there is no language requirement for privacy notices, but they must be easy to understand and the language must be clear and plain. It is recommended that privacy notices be in Finnish, but if it is reasonable to presume that all potential data subjects understand another language well enough, e.g. English or Swedish, the information may be provided in that foreign language.

The Data Protection Act provides derogations to the obligation to provide a privacy notice: (i) where the processing of personal data is solely for journalistic purposes or academic, artistic and literary expression purposes; (ii) where providing the information could prejudice the national safety or defense, public order or safety, the prevention or investigation of crime, or a surveillance assignment relating to taxation or public finances; or (iii) where the personal data have not been obtained from a data subject and where providing information would cause material damage or harm to the data subject and the stored information are not used in decision-making regarding the data subject.

However, if the data subject is not provided with a privacy notice, the controller shall take appropriate measures, including making an appropriate privacy notice publicly available, provided that it does not compromise the purpose of the mentioned derogation. 

Rights to access information

Data subjects will have a right to access copies of their personal data by making a written request to the controller. The initial request is free, though a charge can be made for subsequent requests. Controllers can refuse the request if it is manifestly unfounded or excessive. The response must be provided within a month, though this can be extended by two months if the request is complex

The Data Protection Act applies a number of derogations to this right. In addition to the derogations for privacy notices set out above, the right of access does not apply: (i) when personal data are processed solely for journalistic purposes or academic, artistic and literary expression purposes, (ii) scientific or historical research purposes and provided that certain preconditions are met, for example that the processing is based on an appropriate research plan and information about a specific person are not disclosed to third parties; and (iii) when personal data are processed for statistical purposes and certain preconditions are met, for example the information is not disclosed to third parties in a format from which a specific person can be identified. 

National legislation may further restrict the access right. For example, the Finnish Act on Detecting and Preventing Money Laundering and Terrorist Financing (444/2017), according to which a data subject does not have a right to access the information gathered by those entities (e.g. credit institutions and insurance companies) who have an obligation to report any suspicious business activities. However, the Ombudsman may inspect the legality of the processing of such data on the data subject’s request. 

Rights to data portability

Data subjects will also have a right to data portability where the condition for processing personal data is consent or the performance of a contract. It entitles individuals to obtain any personal data they have “provided” to the controller in a machine-readable format. Individuals can also ask for the data to be transferred directly from one controller to another. There is no right to charge fees for this service.

The Article 29 Working Party has issued Guidelines on data portability (WP242).

The right to data portability does not apply when personal data are processed solely for journalistic purposes or academic, artistic and literary expression purposes. 

Right to be forgotten

data subject can ask that their data be deleted in certain circumstances. However, those circumstances are relatively limited, for example where the processing is based on consent, that consent is withdrawn and there are no other grounds for processing. Even where the right does arise, there are range of exemptions, for example where there is a legal obligation to retain the data

The European Data Protection Board has issued Guidelines on the criteria of the Right to be Forgotten in the search engines cases under the GDPR (part 1) (5/2019).

The right to be forgotten does not apply when personal data are processed solely for journalistic purposes or academic, artistic and literary expression purposes. 

Objection to direct marketing

data subject can object to their personal data being processed for direct marketing purposes at any time. This includes profiling to the extent related to direct marketing.

Under the Data Protection Act, the right to object processing for purposes other than direct marketing, shall not apply with respect to the processing of personal data: (i) solely for journalistic purposes or academic, artistic and literary expression purposes; or (ii) for scientific, historical research or statistical purposes, providing that certain preconditions are met. 

Other rights

The GDPR contains a range of other rights, including a right to have inaccurate data corrected. There is also a right to object to processing being carried out in the performance of a public task or under the legitimate interests condition

Finally, there are controls on taking decisions based solely on automated decision making that produce legal effects or similarly significantly affects the data subjectThe Article 29 Working Party has issued Guidelines on Automated Decision Making and Profiling (WP251).

However, as provided above, the Data Protection Act disapplies data subjects’ rights with respect to the processing of personal data solely for journalistic purposes or academic, artistic and literary expression purposes. It also disapplies the right to rectification of inaccurate personal data and right to restrict processing when personal data is processed for scientific, historical research or statistical purposes, providing that certain preconditions are met. 

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Security

Security requirements in order to protect personal data

The GDPR contains a general obligation to implement appropriate technical and organisational measures to protect personal data.

In addition, controllers and processors must ensure, where appropriate: (i) the pseudonymisation and encryption of personal data; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of its information technology systems; (iii) the ability to restore the availability and access to personal data in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of technical and organisational measures for ensuring the security of the processing

Specific rules governing processing by third party agents (processors)

controller must ensure that any processor it instructs will ensure adequate security for personal data and otherwise meet the requirements of the GDPR.

The controller must have written contracts with its processor containing the enhanced processor clauses.

Notice of breach laws

A personal data breach must be notified to the relevant supervisory authority unless it is unlikely to result in a risk to data subjects. The notification must, where feasible, be made within 72 hours. If the personal data breach is a high risk for data subjects, those data subjects must also be notified. 

Specific notice of breach laws apply to the electronic communications sector under national laws implementing the Privacy and Electronic Communications Directive and to operators of essential services and digital service providers under national laws implementing the Network and Information Systems Directive.

The Article 29 Working Party has issued Guidelines on Personal Data Breach Notification (WP250). 

Controllers in certain sectors may be required to inform sectoral regulators of any breach (for example, financial services firms may be required to inform the Finnish Financial Supervisory Authority of any breach).

However, when processing is performed solely for journalistic purposes or purposes of academic, artistic and literary expression, notifying data subjects of personal data breaches is not mandatory unless required by the Ombudsman. 

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Transfer of Personal Data to Third Countries

Restrictions on transfers to third countries

The GDPR contains a restriction on transborder dataflows. A transfer can take place if it: (i) is to a whitelisted country; (ii) is made pursuant to a set of Model Contracts; (iii) is made pursuant to binding corporate rules; (iv) is made to an importer who has signed up to an approved code or obtained an approved certification; or (v) is otherwise approved by the relevant supervisory authority.

Transfers are also possible if an individual derogation applies. These derogations allow a transfer if it: (i) is made with the data subject’s explicit consent; (ii) is necessary for the performance of a contract with, or in the interests of, the data subject; (iii) is necessary or legally required on important public interest grounds, or for legal claims; (iv) is necessary to protect the vital interests of the data subject; (v) is made from a public register; or (vi) is made under the so-called minor transfer exemption.

The position is broadly the same as under the old Data Protection Directive. One notable change is the introduction of the so-called minor transfer exemption, though that exemption will be very hard to rely on in practice.

The European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018).

Notification and approval of national regulator (including notification of use of Model Contracts)

In general, there is no need for prior approval from a supervisory authority. However, this depends on the justification for the transfer. 

For example, there will be no obligation to get approval for the use of Model Contracts (though it is possible some supervisory authorities may want to be notified of their use). In contrast, it will be necessary to get approval to rely on binding corporate rules, and the supervisory authority must be informed of transfers made using the minor transfers exemption.

Use of binding corporate rules

The GDPR places binding corporate rules on a statutory footing. It will be possible to obtain authorisation from one supervisory authority (subject to approval through the consistency mechanism) that will cover transfers from anywhere in the EU.

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Enforcement

Fines

The GDPR is intended to make data protection a boardroom issue. It introduces an antitrust-type sanction regime with fines of up to 4% of annual worldwide turnover or €20m, whichever is the greater. These fines apply to breaches of many of the provisions of the GDPR, including failure to comply with the six general data quality principles or carrying out processing without satisfying a condition for processing personal data.

A limited number of breaches fall into a lower tier and so are subject to fines of up to 2% of annual worldwide turnover or €10m, whichever is the greater. Failing to notify a personal data breach or failing to put an adequate contract in place with a processor fall into this lower tier.

The Article 29 Working Party has issued Guidelines on administrative fines (WP253).

The Ombudsman may impose a conditional fine in certain cases, such as failure to comply with the Ombudsman’s right to receive information and right to conduct inspection.

Under the Data Protection Act, administrative fines may not be imposed on state authorities, public utilities, municipal authorities, independent public entities, parliament’s bureaus, the office of the President of the Republic of Finland, the Evangelical Lutheran Church of Finland and the Finnish Orthodox Church and the parishes, comprised parishes or organs thereof, or if the default or breach has occurred, or in the case of a continuous default or breach, has ended, more than 10 years ago.

Imprisonment

To ensure the priority of the administrative fines provided for by the GDPR, the previous data protection offence in the Finnish Criminal Code was replaced by a more limited data protection crime. This is most likely to apply to misuse of personal data by the employees of a company.

The crime is committed by a natural person, who is not processing personal data as a controller or processor, and deliberately or as a result of gross negligence, collects, discloses or transfers personal data in violation of: (i) purpose limitation principle or the provisions on transfer or disclosure of personal data under the GDPR and other personal data laws, and thereby violates the data subject’s privacy or causes other damage or material harm; or (iii) statutory data security requirements.

The crime is publishable by a fine or imprisonment up one year. 

Compensation

Data subjects have a right to compensation in respect of material and non-material damage.

Other powers

Regulators will have a range of other powers and sanctions at their disposal. This includes investigative powers, such as the ability to demand information from controllers and processors, and to carry out audits. They will also have corrective powers enabling them to issue warnings or reprimands, to enforce an individual’s rights and to issue a temporary or permanent ban on processing

The Ombudsman also has a right to access any information necessary to exercise its duties at no cost and even when such information is covered by confidentiality provisions. However, the inspection of residential premises is restricted to suspected infringements punishable by administrative fines or sanctions under the Criminal Code.

The Ombudsman may also request assistance from the Finnish police when exercising its powers. In addition, the Ombudsman has certain additional duties and powers based on the Finnish legislation.

Practice

Fines: No fines have been issued in Finland for breaches of the GDPR.

Other enforcement action: In Finland, there is limited enforcement practice in relation to the GDPR, which have so far mainly been of instructive nature.

  • In January 2020, a bank was issued with a reprimand for failing to provide the data subjects with information on a data breach (case 60/171/2020).
  • In January 2020, the Ombudsman confirmed that a user of a shared bonus account had the right to access his/her own bonus point information but not that of others. Providing information on the bonus points of others would be a breach of bank-client confidentiality and the rights and freedoms of others (case 3075/182/2018).
  • In November 2019, a movie theatre company’s loyalty scheme, which could not be joined without consenting to direct marketing, was deemed to not meet the consent requirements of the GDPR (case 6465/182/2018).
  • In November 2019, the Ombudsman confirmed the a data subject did not have to provide additional information to identify themselves in order to exercise their rights (case 7713/163/2018).
  • In October 2019, a Finnish government agency lost a postal package containing confidential customer information. The government agency was required to issue a public notice regarding the data breach in order to inform all affected data subjects (case 2691/171/19).

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ePrivacy | Marketing and cookies

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National Legislation

ePrivacy laws

Act on Electronic Communications Services (2014/917, the “ECS”) (formerly named as the Information Society Code) replaced the previous legislation (i.e. the Act on Protection of Privacy in Electronic Communications, 2004/516), which implemented Article 13 of the Privacy and Electronic Communications Directive. The ECS came into force on 1 January 2015. The relevant provisions on privacy in electronic marketing has remained the same under the ECS.

The amendments to the Privacy and Electronic Communications Directive have been implemented by the ECS.

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Cookies

Conditions for use of cookies

As a consequence of the amendments to the Privacy and Electronic Communications Directive, consent is needed for the use of cookies unless the cookie is strictly necessary for the provision of a service to that subscriber or user. The consent will need to be obtained beforehand.

Regulatory guidance on the use of cookies

According to current regulatory guidance, and despite the CJEU’s decision in Planet49 (C-673/17), consent for the use of cookies may be obtained through browser settings.

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Marketing by E-mail

Conditions for direct marketing by e-mail to individual subscribers

Under the ECS, it is not permitted to send unsolicited direct marketing to individuals by electronic communication, such as e-mail, without the person’s prior consent.

Conditions for direct marketing by e-mail to corporate subscribers

Under the ECS, direct marketing by electronic communication to legal persons is allowed if the recipient has not specifically refused it. According to the guidance note of the Ombudsman, although a personal e-mail address based on a company’s domain name (e.g. individual@company) can be used for direct marketing purposes, the recipient is regarded as an individual and a prior consent is required, unless the direct marketing has been sent to that person based on his job description.

Exemptions and other issues

The ECS allows the similar products and services exemption. According to the interpretation of the Ombudsman, in order to send direct marketing to an individual without the person’s prior consent, marketing may be performed only by using the same electronic means (e.g. text messages, e-mail) through which a service or a product has been bought or obtained.

The ECS also prohibits direct marketing e-mails from being sent if: (i) the identity of the sender is disguised or concealed; or (ii) an opt-out email address is not provided.

The sender must also include the eCommerce information.

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Marketing by Telephone

Conditions for direct marketing by telephone to individual subscribers (excludes automated calls)

Direct marketing by telephone to individual subscribers, when performed by an individual, is not permitted if the recipient has specifically requested not to receive such marketing.

The opportunity to opt out must be reserved in each occurrence of direct marketing easily and at no separate cost. Therefore, the individual subscriber must be able to refuse use of his personal data for direct marketing purposes during each call.

Direct marketing by telephone must be identified as marketing and the identity of the party on whose behalf the marketing is conducted must be provided. 

The ECS also contains a specific prohibition on marketing mobile phone subscriber connections to consumers by phone unless the consumer has specifically requested such marketing. However, this does not prohibit telecom operators from marketing mobile phone subscriber connections to their own existing customers. 

Conditions for direct marketing by telephone to corporate subscribers (excludes automated calls)

Direct marketing by telephone to corporate subscribers is not permitted if the recipient has specifically requested not to receive such marketing. The opportunity to opt-out must be reserved in each occurrence of direct marketing, easily and at no separate cost. 

Direct marketing by telephone must be identified as marketing and the identity of the party on whose behalf the marketing is conducted must be provided.

Exemptions and other issues

No exemptions apply.

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