The Court of Appeal has held that English law prohibiting the publication of racially inflammatory material applies to online material hosted on a server in another country. The Court found that where a "substantial measure" of the publishing activities took place in England, the laws of England and Wales do apply.

Background

The case related to an appeal by two men, Simon Guy Sheppard and Stephen Whittle, against their 2008 convictions in Leeds Crown Court of publishing racially inflammatory material contrary to section 19(1) of the Public Order Act 1986 (the "1986 Act").

Mr Whittle was found, whilst in England, to have written material likely to incite racial hatred and submitted it by e-mail to Mr Sheppard (also in England), who had edited it and uploaded it to a website hosted by a remote server in California, over which Mr Sheppard had control.

There was no challenge to the finding that the material was racially inflammatory. However, that would not have constituted a crime in California.

The two men therefore sought to challenge their conviction on three grounds:

  1. the jurisdiction of the English court;
  2. that the material constituted "writing"; and
  3. that there had been "publication" of the material.

Jurisdiction of the English Court

Applying the decision in a previous case involving breaches of the Companies Act, the trial judge in the Crown Court had found that the court had jurisdiction as "a substantial measure of the activities constituting the crime had taken place in England". The Court of Appeal agreed with that reasoning.

Internet material is "written material"

The Court also found that the material was indeed "written material" within the meaning of the 1986 Act because the words used in that legislation, namely “any sign or other visible representation”, were sufficiently wide to include articles in electronic form.

"Publication" does not require readers

The Court rejected the contention by the solicitors representing the two men that there could not be a "publication" without a publishee (i.e. a reader) and found that all that had to be shown was that the material had been made generally accessible to all or available to, or had been placed before or offered to, the public.

The Court of Appeal distinguished between the criminal offence under the 1986 Act and the civil law tort of libel, stating that:

"The point that there cannot be publication without a publishee is in our judgment fundamentally misconceived," and "based on an irrelevant comparison with the law of libel. Libel is a tort or civil wrong where it is necessary for the claimant to prove that the words complained of were published of him and were defamatory of him … the offences of displaying, distributing or publishing racially inflammatory written material do not require proof that anybody actually read or heard the material."

The Court of Appeal's finding comes in the same month that three executives from Google were convicted by an Italian court of violations of the Italian privacy code. A video posted on the YouTube site showed school children in Turin bullying an autistic classmate, which was said to have been viewed 12,000 times before being taken down following a complaint from the Italian Authorities. The officials, a senior vice president and top legal officer, chief privacy counsel and a former chief financial officer each received a suspended jail sentence of six months.

Both cases highlight the international dimensions to online criminal content and the Google case in particular has sparked much debate about the extent to which Internet Service Providers can and should be held liable for this.