Data Protected - Finland
Last updated February 2024
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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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).
Entry into force
The GDPR has applied since 25 May 2018.
The Data Protection Act has applied since 1 January 2019.
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National Supervisory Authority
Details of the competent national supervisory authority
The Finnish Data Protection Ombudsman and their 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 Deputy Data Protection Ombudsmen that have equivalent powers with the Ombudsman. In addition, the Data Protection Act provides for establishment of an Expert Board (asiantuntijalautakunta) to give opinions on the law at the request of the Ombudsman.
The Office of the Data Protection Ombudsman
P.O. Box 800
00531 Helsinki
Finland
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.
The European Data Protection Board has issued Guidelines on the concepts of controller and processor in the GDPR (7/2020).
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. The Data Protection Act also contains specific provisions on processing of personal ID numbers.
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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 a third party's legitimate interests, except where overridden by the interests or fundamental rights and freedoms 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 European Data Protection Board has issued Guidelines on consent (5/2020).
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 themselves (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 themselves. Younger children may be able to give consent in some 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 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 in the PWLA. Further, the Act on Electronic Communications Services (917/2014, the “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. Consent is not required when an authority discloses information to the employer to enable the employer to fulfil a statutory duty, or if it is expressly separately provided by law on collecting or obtaining data. The Security Clearance Act (726/2014) contains provisions regarding requests for security clearance. The Act on Checking the Criminal Background of Persons Working with Children (504/2002) contains provisions laying out the procedure to be followed when checking the criminal background of persons appointed to work with minors. Provisions on the right to obtain data from the criminal records are laid down in the Criminal Records Act (770/1993). 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 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 decision in OT (C-184/20) might suggest this should be interpreted broadly to include publication of information that indirectly discloses these characteristics.
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.
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 the Processing of Personal Data in Connection with Criminal Proceedings and Maintenance of National Security (1054/2018) implements the Law Enforcement Directive and provides more detailed rules for processing information on criminal offences by authorities. Other special legislation on the processing of personal data by authorities apply, such as the Act on the Processing of Personal Data by the Police (616/2019).
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.
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.
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).
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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
A 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 right to obtain a copy of personal data should not adversely affect the rights and freedoms of others. The response must be provided within a month, though this can be extended by two months if the request is complex.
The European Data Protection Board has issued Guidelines on rights of access (1/2022).
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. An example is 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
A 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
A 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 subject. The 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)
A 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 European Data Protection Board has issued Guidelines on Personal Data Breach Notification (9/2022) and Examples regarding Personal Data Breach Notification (1/2021).
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. This restriction does not apply if the transfer is to a whitelisted country.
Transfers can be made: (i) pursuant to a set of Standard Contractual Clauses; (ii) pursuant to binding corporate rules; (iii) to an importer who has signed up to an approved code or obtained an approved certification; or (iv) where otherwise approved by the relevant supervisory authority. However, following the decision in Schrems II (C-311/18) any transfer made on this basis must be subject to a transfer impact assessment of the laws of the relevant third country and supplemented by supplementary protections where necessary.
The European Data Protection Board has issued Recommendation on European Essential Guarantees for surveillance measures (2/2020) and a Recommendation on measures that supplement transfer tools (1/2020) to help conduct this transfer impact assessment. The European Commission has also issued an FAQ on the new Standard Contractual Clauses.
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 European Data Protection Board has issued Guidelines on derogations applicable to international transfers (2/2018). Finally, the European Data Protection Board has issued Guidelines on the interplay between Article 3 and international transfers(2/2018) to help identify when a transfer takes place.
Notification and approval of national regulator (including notification of use of Standard Contractual Clauses)
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 Standard Contractual Clauses (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.
Fines can only be imposed where there is an intentional or negligent infringement of the GDPR, see Deutsche Wohnen (C-807/21).
The EDPB has published Guidelines on the calculation of administrative fines (04/2022).
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. This requires more than a mere infringement of the GDPR and there must be actual material or non-material damage, however there is no minimum threshold of seriousness before compensation is available, see Österreichische Post (C-300/21).
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: The most significant fines issued by the Ombudsman are set out below:
- In December 2022, debt collection company Alektum Oy was fined €750,000 for insufficient fulfilment of data subjects’ rights, following three complaints from individuals who claimed the company had not responded to requests for access to data, or had given an insufficient response. The investigation by the Office of the Data Protection Ombudsman revealed that Alektum Oy had indeed regularly failed to respond to data subjects' requests concerning their data protection rights. The Ombudsman concluded that the company failed to familiarise itself sufficiently with the requirements of the data protection legislation and that its conduct showed disregard for the law. In determining the fine, the Ombudsman also took into account that the company failed to comply with the obligation to cooperate with the supervisory authority during the investigation.
- In February 2023, Suomen Asiakastieto Oy was fined €440,000 for failing to erase unfounded bad credit records saved into the credit information register as a result of inadequate practices. In 2021, the Office of the Data Protection Ombudsman investigated the activities of Suomen Asiakastieto with regard to the processing of data on bad credit records based on legally valid judgments and concluded that data based on judgments in civil cases should not have been recorded as a bad credit record and any unfounded records should be removed. Following further consultation by the Data Protection Ombudsman in January 2023, it was found that the company failed to correct its practice and remove the unfounded records. The company claimed it had misinterpreted the Data Protection Ombudsman's order and announced that it it had removed from its register all bad credit records based on legally valid judgments. The Sanctions Board of the Office of the Data Protection Ombudsman considered that the controller made a conscious decision not to comply with the Ombudsman's order, therefore, the company's conduct had to be considered as deliberate.
- Vastaamo psychotherapy centre was fined €608,000 in December 2021. An unauthorised third party accessed the centre’s medical database at least twice, siphoning off data and leaving a ransom note. Personal data was not adequately protected against unauthorised and unlawful processing, accidental loss, destruction, or damage. The centre lacked basic measures to process personal data securely. Additionally, the Ombudsman determined that Vastaamo had known of data loss by March 2019, but was late in reporting the breach to the Ombudsman and its patients.
- Kymen Vesi Oy was fined €16,000 in May 2021. Kymen Vesi Oy used location information collected by a driving information system to monitor employees' working hours. According to the Ombudsman, Kymen Vesi Oy had not complied with its duty to carry out an impact assessment in accordance with Article 35 of the GDPR for processing operations relating to the location of employees. In addition, during processing of the location data, the company had not performed adequate organizational or technical measures in accordance with Articles 24 and 25 of the GDPR nor had it demonstrated and ensured compliance with the GDPR. Kymen Vesi Oy appealed to the Eastern Finland Administrative Court. The Court dismissed the appellant’s appeal. According to the Court the GDPR clearly provides that a fine may be imposed for breaches of obligations, and the fine imposed by the Ombudsman was regarded as effective, proportionate and cautionary in accordance with Article 83 (1) of the GDPR.
- PakkiPate Oy was fined €75,000 in April 2021. The company issued parking tickets to data subjects, some of whom had requested information about the processing of their personal data and deletion of their data. The controller refused to process these requests unless data subjects provided their ID card numbers and addresses for identification purposes. The Ombudsman ruled that the company had not complied with its duty to inform the data subjects and permit deletion of their data, and had also failed to comply with data minimisation. There was no reasonable doubt about the data subjects’ identity, therefore it was not necessary to request further proof of identification. The company also failed to comply with storage limitation, by keeping photos of data subjects’ cars and parking tickets for possible future legal action, without a deadline for data deletion. The fine is not final as the company has appealed to the Administrative Court.
There have been two cases in which fines issued by the Ombudsman have been annulled.
The first relates to Posti Group Oyj who were fined €100,000 and given a reprimand in May 2020. They had their fine annulled in its entirety by the Administrative Court of Helsinki. However, that decision was overturned by the Supreme Administrative court ruled that the processing of personal data by Posti Group Oyj was not transparent as required by the GDPR. In particular, the GDPR required Posti Group to take active measure to provide enhanced transparency information and it had not done so in relation to persons who had made an electronic notification of change of address and who had not accepted the product terms and conditions of the mailing management services. In addition, the Supreme Administrative Court considered that the Ombudsman did not have to exercise other remedial powers before imposing a fine. Therefore, in September 2023, the Supreme Administrative Court annulled the decision of the Administrative Court and upheld the fine.
The second relates to Company A Oy who was fined €12,000 in May 2020 for collecting personal data of job applicants and employees unnecessarily. Pursuant to the Act on the Protection of Privacy in Working Life, an employer may only process data that are necessary for the purposes of the employee’s employment relationship. Deficiencies were also found in the documentation related to compliance with the GDPR. In deciding to annul the fine, the Supreme Administrative Court took into account the Ombudsman’s obligation of investigation and presumption of innocence in relation to the administrative fine. The Supreme Administrative Court found that the facts were not sufficient to prove that the company had collected unnecessary personal data without a legitimate basis.
Other enforcement action:
- In March 2022 the Ministry for Foreign Affairs was issued with a reprimand for infringement of Articles 33 and 34 of the GDPR, regarding the deadlines of notifying the supervisory authority of a personal data breach and communicating the data breach to the data subjects. The Ministry had not notified the Ombudsman of the data breach within 72 hours, while it undertook investigative work alongside different authorities and interest groups following a data breach. The Ombudsman held that the Ministry's reasoning for the late notification was not well-founded.
- In March 2022 a Finnish company was issued with a reprimand for processing personal data without the data subjects’ informed consent. The data subjects had not been provided with relevant information to assess the purposes for which their personal data would have been used. Thus, there had been no informed consent as required by the GDPR.
- In October 2021 the Ombudsman gave a notice to a company. The company had been using the WhatsApp instant messaging service to send its customers' personal data, including home addresses and door codes, to its employees’ personal mobile devices. According to the Ombudsman, the use of WhatsApp to transmit customer data from the company to the employees’ personal devices had not complied with the requirements of the GDPR. This included breaching the principles of integrity and confidentiality, the obligations for data protection by design and by default, and security of processing.
- In June 2021 the Ombudsman gave a notice and instructed a controller to amend his processing operations to enable data subjects to exercise the right of access as provided for in Article 12 (1) and (3) and Article 15 (3) of the GDPR.
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ePrivacy | Marketing and cookies
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National Legislation
ePrivacy laws
The 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 to enable the transmission of messages in communications networks or for the provision of a specifically requested service to that subscriber or user. The consent will need to be obtained beforehand.
Regulatory guidance on the use of cookies
The competent authority, the Finnish Transport and Communications Agency (“Traficom”) issued updated guidance on the use of cookies in September 2021. This followed two decisions delivered by the Administrative Court (H1515/2021 and H1516/2021 / Reg. no. 20801/2020 and 20848/2020) on the prerequisites for consent for the storing of non-essential cookies. According to these two decisions, default internet browser settings could not be considered “specific” and “informed” indications of consent as referred to in Article 4(11) of the GDPR. This was because the default internet browser settings or those edited by the user would generally allow the use of various cookies. Therefore, a website operator could not rely on the user’s internet settings as an indication of consent.
According to the guidelines, cookies listed below could be considered essential:
- Cookies that have the sole purpose of transmitting messages in communications networks. However, if cookies are only used to facilitate, speed up or in any way manage the transmission, they are not covered by the exception.
- Cookies that are necessary for the service provider to provide a service that the subscriber or user has specifically requested. For example, cookies required for remembering the content of a user's shopping cart in an online store.
- Authentication-related session-specific cookies are also likely to be considered essential cookies as logging in to a service is an action that the user clearly chooses to take, and since no information is stored in the long term.
Examples of non-essential cookies listed in Traficom’s guidance includes cookies used to display targeted advertising and cookies related to a third party’s content.
Additionally, determining the necessity of cookies may require case-by-case assessment. For example, permanent authentication-related login cookies cannot be automatically considered essential if the user does not understand or cannot assume that long-term login will be maintained. Also, analytics cookies cannot automatically be considered essential for the provision of a service requested by the user. If in the service provider's view, the cookies are absolutely essential for the provision of the service, the service provider must present clear grounds for the procedure and ensure the protection of user privacy. Lastly, with regard to user preference or personalization cookies, the assessment of essentiality requires consideration of user expectations concerning the service. If the website or service can primarily be understood to offer a service that is personalized, personalization cookies could be considered essential to provide the service explicitly requested by the user.
To conclude, the need for consent varies depending on the type of cookie. As the law does not classify different types of cookies based on their technical or other characteristics, what is most important is to consider the purpose of use for the data that is collected and processed using cookies.
According to Traficom’s guidelines, user consent may be requested through a banner or pop-up window that opens when the user visits the site. Pop-up windows may be automatically blocked through the settings of modern internet browsers, or the user may specifically block them. Therefore, a banner is a more reliable option.
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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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