Facts
The Appellant ran a business called “Global Web Suites” which
designed the sites for MJES Group plc. The police accessed
one such site, known as “xtreme-perversion”. A police
constable subscribed to this web-site using a pseudonym and, a
couple of days later, received a password via e-mail. He
printed various pornographic images from his desktop computer at
the station.
The Appellant was arrested and charged with publishing obscene
articles contrary to Section 2(1) of the Obscene Publications Act
1959. On 30 June 1999 he pleaded guilty at Southwark Crown
Court following a ruling made by His Honour Judge Hardy rejecting
two submissions on behalf of the Appellant as to legal
matters. The appeal concerned the first submission, by which
the Appellant claimed that the Southwark Crown Court did not have
jurisdiction to try the case as there was no publication for the
purposes of the Obscene Publication Act 1959 in England: the
website was based in the United States.
Judgment
Rose LJ rejected the submission. Section 1(3) of the
Obscene Publications Act 1959 provides:
“For the purposes of this Act a person
publishes an article who – (b) in the case of an article
containing or embodying matter to be looked at or a record, shows,
plays or projects it, or, where the matters is data stored
electronically, transmits that data”
The Appellant conceded that he, or through his agents, was
involved both in the transmission of material to the website in the
United States and its transmission back to England and therefore he
could not contend that publication did not take place in this
country. The Court of Appeal held that it was not the case
that there could only be single publication but that numerous
publications could take place. There may be publication on a
web site abroad when images are uploaded and there can be further
publication when the images are downloaded elsewhere. The
Court declined to speculate on the result where pornographic
material was uploaded to a location out of the jurisdiction
intending that there should be no transmission of that material
back to the UK. That would require consideration of questions
of intention and causation in relation to where the publication
should take place.
Commentary
The case also considered a (now defunct) point of evidence law
which is not reported here (involving section 69 of the Police and
Criminal Evidence Act 1984, repealed by the Youth Justice and
Criminal Evidence Act 1999).
The point concerning jurisdiction does serve to highlight the
worldwide nature of the internet. Regardless of the physical
location of the actual data constituting the pornographic material,
where it is downloaded could also, according to local law, be
regarded as published there and punishable. In this case, the
wording of the Obscene Publications Act, as amended, was wide
enough to bring within its scope the activities of an owner of a
pornographic website.
It is a simple point, and one which the Court of Appeal did not
waste much time on. Downloading such material here means a
publication by the website owner, and there could, of course, be a
multiplicity of such publications.
Thus, where a website is accessible from many jurisdictions,
there could be a plethora of local laws making that website
illegal. The court did not discuss the aspect of where a
website owner did not intend that individual jurisdictions should
be able to download the material. This is an interesting
question, and it is hard to see how such a website could verify
such access, let alone control it.
Mr. Waddon is not the only person to establish pornographic
websites, and it remains to be seen in practice how courts will
provide local regulation of a worldwide phenomenon.
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