In the case of R v Simon Guy Sheppard and Stephen Whittle, the Court of Appeal has confirmed that English law applies to material published online even if it is hosted on a server in another country.

Background

Section 19 of the Public Order Act 1986 provides:

"(1) A person who publishes or distributes written material which is threatening abusive or insulting is guilty of an offence if –

a) He intends thereby to stir up racial hatred, or

b) Having regard to all the circumstances, racial hatred is likely to be stirred up thereby.

(2) In proceedings for an offence under this section it is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting.

(3) References in this part to the publication or distribution of written material are to its publication or distribution to the public or to a section of the public."

Section 29 of the Act provides that “written material” includes “any sign or other visible representation”.

Facts

Sheppard and Whittle were convicted of offences under section 19 of the Public Order Act 1986 for publishing racially inflammatory material. Whittle composed material which he submitted by e-mail to Sheppard. Sheppard edited it on his computer and then uploaded it to a website called heretical.com which was set up by him and was hosted by a remote server located in Torrance, California. In order to do this he used a format known as File Transfer Protocol. Once the material reached the server, the server converted the format of the material to HTML which made it available to be accessed on the Internet by those visiting the website, including people within the jurisdiction of England and Wales. Sheppard had control of the website as far as its contents were concerned. He could upload and edit material.

The material was not illegal in the US.

On conviction, Sheppard was sentenced to 4 years 10 months imprisonment and Whittle to 2 years 4 months.

Sheppard and Whittle appealed against their sentences on three grounds:

  1. There was no publication of the material in the UK. The act of publishing took place in California when the format of the material supplied by Sheppard was converted to allow it to become accessible on the Internet and when it was accessed by other people clicking on the website. Therefore, the court had no jurisdiction over the matter.
  2. There was no publication of the material. Uploading material to a website was not publication. Proof was needed that someone had read it.
  3. Website content was not “written material”.

Decision

The Court of Appeal held:

The court did have jurisdiction over the matter. The test to be applied was that set out in R v Smith (Wallace Duncan) (No 4) [2004] which was ‘did a substantial measure of the activities constituting the crime take place in the UK?’ There was, in the court’s view, abundant material to satisfy the substantial measure test. Almost everything in this case related to this country. That was where Sheppard and Whittle operated, one in Preston, the other in Hull; that was where the material was generated, edited, uploaded and controlled. The material was aimed primarily at the British public. The only non-UK element was that the website was hosted by a server in California but the use of the server was merely a stage in the transmission of the material.  

The Crown simply needed to show that the material was generally accessible to all or available to or placed before or offered to the public. This accorded with the definition of publication in the Oxford English dictionary. In this case, the material was available to the public generally as it was on the website.

“Written material” did include articles in electronic form. Just because the material was on the Internet did not mean that it did not count as written material.

“Whilst in 1986 the world-wide web was a thing of the future and computers were in their infancy it seems to us clear that "written material" is plainly wide enough to cover the material disseminated by the website in the present case. The judge took the same view. He said that what was on the computer screen was first of all in writing or written and secondly that the electronically stored data which is transmitted also comes within the definition of written material because it is written material stored in another form. He drew a comparison with opening and closing a book; when the book is open you can see the writing; when it is closed you cannot.”

Accordingly, Sheppard and Whittle’s sentences were not wrong in principle but, taking into account the totality of their criminal conduct, were reduced to 3 years 10 months and 1 year 10 months imprisonment respectively.

Further reading

Click here for a copy of the judgment