As mentioned earlier, Electronic Frontier Finland (EFFI) was suspected of illegal fundraising. The case was tried today. I went to the court house to observe the proceedings. (I am a member of the association.)
I had never been to a court hearing of any kind in any role. Moreover, we tend to see dramatized American and English court proceedings on TV. Of course, I had some idea of what to expect. The case was heard by a panel of three lay judges, who sat silent all the time, and one professional judge who also chaired the session. (If all the three lay judges together disagree with the pro, they can override the verdict.) The proceedings were very low on pompous formalities: people sat when they spoke and freely made mistakes in the level of formality in their speech. I didn’t expect the court room to be that small, though. There was room for about a dozen members of the public.
The defendants were EFFI and the members of the 2005 board of the association personally. The prosecution had summoned only two board members (the president and the treasurer) to be present. The defense had brought along a third board member. A fourth board member was present as a member of public but not as a witness.
The prosecutor wasn’t the one who had prepared the case. The prosecutor on whom the case had landed started out pompously and aggressively demanding the members of the EFFI 2005 board to be fined for a fundraising crime and around €4 000 of donations to be confiscated from EFFI to the State. The reason was that EFFI had had a Web page stating that the association may receive donations and the payment mechanisms for making donations (account number, email address for contact and a Paypal button), but the association did not have a fundraising permit. The prosecutor’s case relied on a memo written by two officials of the Ministry of the Interior. The memo gave an incriminating opinion about EFFI’s case.
There were three defense lawyers: Heikki Tuomela representing the board members except one, Mikko Välimäki representing EFFI (the other two Turre Legal partners were themselves defendants) and the attorney (husband) of the one board member (herself also a lawyer) not represented by Tuomela. Tuomela started by asking the prosecutor to specify who exactly of his clients were charged with what. The prosecutor said he wouldn’t instruct the defense. It appeared that he didn’t really know the case he had been handed well enough to answer.
Tuomela and Välimäki proceded to shred the prosecutor’s case from pretty much every angle. None of the board members had taken the initiative to put the page on the Web. Only three board members were even aware of the page. If fundraising is done by appealing to the public without offering consideration for the money, collecting money requires a permit under the Fundraising Act. The public wasn’t appealed to and there was consideration.
The defense didn’t mention lobbying performed by EFFI as a consideration for donations. Instead, the defense posited that the donors got the editorial content of the EFFI Web site in consideration for their donations. An opinion of a parliamentary committee stated that contributions to volunteer-run news Web sites weren’t subject to the permit procedure under the Fundraising Act.
I particularly liked it when Välimäki argued that the statute the case was based on was flawed, because it lacked clear definitions to the point that the Ministry of the Interior itself has recognized this as a flaw in the version of the statute in force in 2005 and, yet, the relevant part of the Act remained unchanged when the Act was recently amended. Moreover, he argued why the memo signed by the two ministry officials was logically flawed and inapplicable. (The memo focused on only one of two necessary conditions and assumed that because the activity didn’t fall under one definition introduced in the later version of the Act, it had to fall under another.)
At this point the prosecutor had effectively given up, but he didn’t drop charges, because he couldn’t justify not prosecuting given the ministry memo.
Three board members were questioned both by the prosecutor and the defense lawyers. A list of 29 associations with similar or even more appealing-to-the-public Web pages without a fundraising permit were presented to the court as evidence of the way of the land. It was pointed out that most donations came in the form of voluntarily enlarged membership fees paid by members. (Appealing to members for money doesn’t require a permit.) It was argued that associations that do have permits get them for collecting money on the street—not on their Web pages.
A lot of time was spent explaining the quality of the content of the EFFI site (used as a reference by courts, etc.) and the qualifications of the members producing the content. Also, it was explained how representatives of EFFI are routinely called to comment on bills in the parliament. The defense started questioning each person by asking them to state their education and profession (lawyers, PhDs, masters in tech.). In the hallways, the EFFI group was visibly different from the usual clientele of the court house.
The defense argued that there was not a single known case of anyone being motivated to donate by the seeing the donation page. Rather, people got their motivation and then found out a mechanism. The prosecution had failed to show a single donation inspired by the donation page. Also, the sum to be confiscated presented by the prosecutor treated as tainted all the donation EFFI had received regardless of donor or method.
Two donors were called in by the defense to testify about their motives. To show the absurdity of the case considering the purpose of the Fundraising Act (protecting people from scams), neither witness thought EFFI had scammed them. Rather, they viewed the scenario of their donation being confiscated by the State very negatively. (The prosecutor didn’t even allege any misuse of the donated funds!) One of the donors said he’d rather have his money back so he could redonate it to EFFI. The prosecutor didn’t even bother to question the donors.
Not considering the absurdity of the case as a whole, the weirdest part was that before the closing statements, the prosecutor dropped charges against defendants who hadn’t been heard in court. Does this mean that it is in the best interest of a defendant not to voluntarily appear in court and send a well-prepped lawyer instead?
The verdict was that the there had been no appealing to the public in the dictionary sense of the word and the statute failed to give a special definition. Therefore, there had been no crime. The verdict was very narrow being just logically sufficient to decide the absence of crime in this particular case. The court didn’t take a stance on any of the other arguments, which was rather disappointing from the point of view of setting precedent.
So all in all, an anonymous filer of a report of the alleged crime had managed to tarpit the association for about a year causing financial uncertainty and wasting people’s time. It is rather obvious that whoever initiated the process was unhappy with something EFFI has said about spam, privacy, copyright, patents, censorship, etc. and wanted to get revenge. He or she was successful at causing a waste of a lot of time.
The two ministry officials, by signing their ill-conceived memo, didn’t give the prosecutor a way out of trying the case thereby causing a transfer of about €12 000 of tax money to the defense lawyers in attorneys’ fees. Not to mention the cost of police investigation and prosecution. Turre Legal donated €2 000—about half of Välimäki’s fee—to EFFI causing a net transfer of tax money to EFFI instead of the State confiscating money from EFFI.
Oh, and the disputed Web page is back up.