All of
the proposals have been criticised by civil rights groups – not
least the Government’s own terror law watchdog, Lord Carlile of
Berriew QC, who yesterday published his own report about the draft
bill.
But Lord Carlile was generally approving of those parts of the
bill that could affect website owners and ISPs, finding that the rules
relating to the encouragement or glorification of terrorism were on
the whole “proportional and a sensible part of the legal
armoury”.
What the proposals state
Firstly, under the draft bill, an individual will commit an
offence, punishable by a fine or up to seven years in prison,
if:
(a) he publishes a statement or causes
another to publish a statement on his behalf; and
(b) at the time he does so –
(i) he knows or believes, or
(ii) he has reasonable grounds for
believing, that members of the public to whom the statement is or
is to be published are likely to understand it as a direct or
indirect encouragement or other inducement to the commission,
preparation or instigation of acts of terrorism or Convention
offences.
The draft Bill defines statements likely to be understood as
encouraging terrorist acts as statements that glorify the
“commission or preparation (whether in the past, in the future or
generally) of such acts or offences,” and those from which the
public could be reasonably expected to infer “that what is being
glorified is being glorified as conduct that should be emulated in
existing circumstances.”
An individual charged with this offence will have a defence if
he can show:
- that he published the statement in respect of which he is
charged, or caused it to be published, only in the course of the
provision or use by him of a service provided electronically;
- that the statement neither expressed his views nor had his
endorsement; and
- that it was clear, in all the circumstances, that it did not
express his views and (apart from the possibility of his having
been given and failed to comply with a take down notice) did not
have his endorsement.
Secondly, the draft bill targets the dissemination of terrorist
publications. Under the proposals a person will commit an offence,
punishable by a fine or seven years in prison, if he distributes,
circulates, gives, sells, lends, offers, transmits electronically
or provides a service allowing others to access or obtain a
terrorist publication.
Even holding such a publication in his possession with a view to
providing it to others is a criminal act.
The draft bill defines a terrorist publication as one that
contains matter that constitutes:
- a direct or indirect encouragement or other inducement to the
commission, preparation or instigation of acts of terrorism (which
depends on how the publication is likely to be understood by those
who are likely to access it); or
- information of assistance in the commission or preparation of
such acts. (The information has to be capable of being useful for
those purposes, and to be understood by those likely to access it
as being included in the publication because it was useful).
A person will have a defence to a charge of disseminating a
terrorist publication if he can show that he had not examined the
publication, had no reasonable grounds for suspecting that it was a
terrorist publication and that he did not endorse it.
Where the material has been provided electronically, a person
will have a defence if he can show:
- that he engaged in that conduct only in the course of, or in
connection with, the provision or use by him of a service provided
electronically;
- that the publication to which the conduct related, so far as it
was a terrorist publication, neither expressed his views nor had
his endorsement;
- that it was clear in all the circumstances that the
publication, so far as it contained such matter, did not express
his views and (apart from the possibility of his having been given
and failed to comply with a take down notice) did not have his
endorsement; and
- that the conduct in relation to that publication, so far as it
was a terrorist publication, was not intended by him to provide or
make available assistance to any person in the commission or
preparation of acts of terrorism.
About internet activity
The draft bill details how the legislation will apply to
statements published in the course of the provision or use of a
service provided electronically. In general terms it sets out a
notification system by which a “constable” will notify an ISP or
other relevant party of offending material.
If the material is not taken down or modified after a two-day
period, the material will be deemed to have the endorsement of the
person notified – unless that person can provide a reasonable
excuse.
If that person complies with the notice, but then publishes, or
causes to be published, a statement that is in effect a repeat
statement, that person will be deemed to have endorsed it.
He will, however, have a defence if he can show that he:
- has, before that time, taken every step he reasonably could to
prevent a repeat statement from becoming available to the public
and to ascertain whether it does; and
- was, at that time, not aware of the publication of the repeat
statement; or having become aware of its publication, has taken
every step that he reasonably could to modify or take down the
repeat statement.
Responses to the proposals
Lord Carlile's report, 'Proposals by Her Majesty's Government
for Changes to the Laws Against Terrorism,' generally upholds the
Government’s proposals.
He praises the Government for changing its initial proposals on
the glorification of terrorism, and welcomes the defence that will
excuse “innocent publication on the internet" which, says Lord
Carlile, “in this context is extremely difficult for internet
service providers and chat room sites to control.”
With regard to the first offence of encouraging terrorism, he
finds that “The balance between the greater public good and the
limitation on the freedom to publish is no more offended by this
proposal than it would be by, say, an instruction manual for credit
card fraud were such to be published. I believe that it is Human
Rights Act compatible.”
With regard to the second offence of disseminating terrorist
publications, and its application to the internet, Lord Carlile
considers the argument that it will create too great a restriction
on the right of free speech, but rejects it.
However, Lord Carlile does express one concern: that academics,
politicians and journalists might find themselves targeted by the
legislation.
“It is important to ensure that genuine and sometimes useful
research is not turned into a samizdat activity,” he warns. “The
government should consider whether amendments might be needed to
ensure that these categories of activity are not criminalised.”
Civil rights group Liberty said that the proposals were
extremely broadly drafted and warned that they do not require any
intention to incite others to commit criminal acts.
