The Internet is often accused of being awash with pornography, and so indeed it is. Much of this is nevertheless perfectly legal under English law, and much of that which is of doubtful legality is unlikely to be considered worth prosecuting, given the relatively liberal and permissive views of modern English courts or juries. Sometimes, however, the police will come across things that are so horrific or disgusting that action may be taken. Child pornography provides by far the most important example, and is subject to special prohibitions that enable cases to be prosecuted without recourse to the vagaries of the Obscene Publications Act 1959; but other examples recently in the news include ‘squish’ sites, which show animals being tortured and crushed, and ‘filthy’ sites, devoted to coprophilia and other sexual images involving excrement.
Let us assume that a police officer attached to an obscene publications unit discovers and downloads material of this kind when surfing the internet in a London police station. Let us also assume that a court or jury finds this material to be obscene (i.e., finds that it has a tendency to deprave or corrupt persons by whom it may be accessed) for the purposes of the Obscene Publications Act 1959. Does this necessarily mean that an offence has been committed under English law? One might think so, but there may be problems, because in many cases the obscene material is produced abroad (often by foreign nationals) and uploaded onto a foreign internet server by a foreign company. How if at all can this involve offences under English criminal law?
The Ambit of English Criminal Law
English criminal law applies on a predominantly territorial basis. Things that are done abroad (or even in Scotland or Northern Ireland) cannot ordinarily amount to offences under English law. This is not strictly speaking a matter concerning the jurisdiction of the English courts, although it is often described as such. If it were merely a matter of jurisdiction, the Supreme Court Act 1981, s. 46(2), would provide a simple answer, because it gives the Crown Court jurisdiction over indictable offences wherever they are committed; but s. 46(2) is of no assistance in respect of misconduct abroad unless that misconduct amounts to an indictable offence under English law. As Viscount Simonds explained in Cox v Army Council [1963] AC 48:
‘Apart from those exceptional cases in which specific provision is made in respect of acts committed abroad, the whole body of the criminal law of England deals only with acts committed in England.’
Offences under the Obscene Publications Act 1959 are not subject to any such ‘exceptional specific provision’. In contrast, offences involving child pornography, contrary to the Protection of Children Act 1978, s. 1, are indeed subject to such a provision. Under the Sex Offenders Act 1997, s. 7 and sched. 2, certain sexual offences (including those under s. 1 of the 1978 Act) are capable of commission outside the UK, but only where: (a) the conduct in question also amounts to an offence under the law in force where it is committed; and (b) the defendant is a British citizen or UK resident. A foreign child pornographer who posts images of child abuse on a foreign internet server does not therefore fall within the ambit of s. 7. Such a person can only be guilty of an offence under English law if he can be deemed to have ‘committed’ that offence within England and Wales itself (or aboard a British ship, etc). The same is true of anyone (British or not) charged with an offence under the Obscene Publications Act 1959, which ordinarily has no extraterritorial ambit at all1.
There is nothing heretical in the suggestion that a person who remains abroad may nevertheless be regarded as committing a crime in England. In Governor of Brixton Prison, ex p. Levin [1997] QB 65, it was held in the course of extradition proceedings that L could have committed theft in the USA by fraudulently accessing a computer operated by Citybank in Parsipanny, New Jersey, even though he had been sitting at his computer in St Petersburg at the time. Beldam LJ said:
‘In the present case no instructions [concerning the transfer of the funds that were stolen] could be given without first gaining entry into the Citibank computer in Parsipanny. We see no reason why the appropriation of the client’s right to give instructions should not be regarded as having taken place in [that] computer.’
Can such reasoning properly be applied to the dissemination of internet pornography? A recent decision of the Court of Appeal suggests that it can, but there are several possible objections to that, as we shall see.
R v Perrin
In Perrin [2002] All ER (D) 359 (Mar); [2002] EWCA Crim 747, P was convicted of publishing an obscene article in England. He formally admitted that he was responsible for the publication of a website entitled, sewersex.com, which showed images of coprophilia or coprophagia, involving the consumption of excrement. The site was primarily a subscription site, but the preview page to this site (the page in respect of which P was convicted) was freely accessible by anyone who knew how to find it, anywhere in the world. The site was accessed by an officer attached to the Obscene Publications Unit of the Metropolitan Police. As a result of what this officer recorded, P (a French citizen) was arrested in London and charged with offences under the Obscene Publications Act 1959 s. 2(1).
P claimed at his trial that the material had been prepared and uploaded abroad. The Crown did not dispute this, nor did it produce evidence to identify the location of the website or to establish whether such material was illegal there. It relied instead on the argument that obscene images had been ‘published’ in England when downloaded to the officer’s PC in London, and that an offence had, on that basis, been committed in England.
‘Publication’ under the 1959 Act
The Obscene Publications Act defines the concept of publication, but for the purpose of defining those who are publishers, rather than for the purpose of identifying the place where publication occurs. Section 1(3) defines a publisher as one who:
(a) distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or
(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 matter is data stored electronically, transmits that data.
On the face of it, ‘publication’ appears to be an act done by the publisher at the place from which any such data or image is transmitted, rather than at the place to which it is transmitted. In Fellows [1997] 2 All ER 548, it was held that images stored on a computer may be published merely by permitting other persons to access and download them. The court rejected the argument that an offence of publication must involve active conduct by the defendant; but this does not mean that the downloading of an image by a third party in another country involves an act of publication by the defendant in that country.
Nor did the Court of Appeal properly consider that issue in Perrin. Harrison J, who gave the judgment of the court, merely referred to an earlier decision in Waddon [2000] All ER (D) 502, saying:
‘.it is clear from the decision of this court in Waddon ., that there is publication for the purposes of s. 1(3) both when images are uploaded and when they are downloaded.’
With respect, Waddon decided no such thing. The obscene material in that case had been prepared by W in England and uploaded from England onto a website in the USA, from whence it was accessed and downloaded by a police officer in London. On those facts, the occurrence of publication within the jurisdiction could hardly be disputed, but the court declined to rule on the kind of scenario that later arose in Perrin. Rose LJ said:
[Counsel] invited the Court, which invitation . we did not accept, to rule upon what the position might be in relation to jurisdiction if a person storing material on a website outside England intended that no transmission of that material should take place back to this country. For the purpose of this appeal, it is unnecessary to embark on a consideration of the issues which may arise in relation to that matter, which will, no doubt, . depend upon questions of intention and causation in relation to where publication should take place..
Rose LJ did however add:
‘As it seems to us, there can be publication on a website abroad, when images are there uploaded; and there can be further publication when those images are downloaded elsewhere. That approach is, as it seems to us, underlined by the provisions of s. 1(3)(b) as to what is capable of giving rise to publication where matter has been electronically transmitted.’
This passage was clearly obiter, but it was adopted without further analysis as the ratio of Perrin. With respect, the issues involved demand closer attention. Even if s. 1 (3)(b) is capable of bearing the meaning attributed to it in Perrin (which is questionable) such a meaning would tend to impose English criminal law on foreigners (as well as on British citizens) in respect of conduct which may be committed entirely abroad, and which may not necessarily be considered unlawful there. The potential issues here are very profound, especially in a world where shared standards of sexual tolerance or permissiveness do not really exist. In particular, the dual-criminality safeguards built into the Sex Offenders Act (above) would simply be by-passed.
The Human Rights Argument
Counsel in Perrin reminded the Court of Appeal of the views expressed by the European Court of Human Rights in Sunday Times v UK (No 1) [1979] 2 EHRR 245, in which it was held that:
‘Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.’
How, counsel asked, could this test be satisfied in internet cases where the publisher cannot know by whose laws his conduct may eventually be judged? The US courts (most recently in ACLU v Reno (No 3)(2000) 217 F.3d 162) have repeatedly rejected, as unconstitutional, attempts to enact federal laws that threaten to make the legality of unrestricted internet publications in the USA dependant on whether their content would be considered offensive or harmful to minors on the basis of contemporary community standards. Even within the USA, community standards are thought to vary too widely to make such a test viable – unless the publishers submit to the standards of the most intolerant and restrictive state of all. When one moves to a world stage, the absence of universal standards is even more obvious. Things that may be considered merely risqué in one country may well be considered both offensive and criminal in another, but the contents of a website may be read in each.
Questions of Territorial Sovereignty
Questions also arise as to the legitimacy of interference in the internal affairs of other states. Website content that is lawfully published within the state where the site is hosted ought not to be punishable as a crime in another, unless perhaps it can be established that its target audience was situated in that other state. This may well have been the case in Perrin, but it was never proved, and it was not the basis of the court’s decision. Even if such proof were given, it would remain doubtful whether any relevant ‘publication’ took place in England.
A somewhat similar issue has been raised in the ongoing dispute between Yahoo Inc. and the French courts over the issue of online auctions involving Nazi memorabilia.2 The sale of such material is illegal in France, but not in the USA; and despite adverse rulings in the French courts, the US courts have so far upheld Yahoo’s right to publish anything on their US sites that is not contrary to US law, even if those US sites can in fact be accessed from France3. The US government would doubtless be outraged should an executive of Yahoo’s American operations be arrested during a holiday to France and charged with a contempt of court following his company’s failure to bar such items from its US auctions. How then can it be legitimate for an English court to convict a French citizen on the basis of material that (as far as we know) was prepared abroad and uploaded abroad and which (as far as we know) was lawful within the state where the website was located?
Implications for Child Pornographers
Acceptance of the Perrin approach might in some cases make it easier for prosecutions to be mounted in cases involving the transmission of child pornography, especially since some foreign web-sites on which child pornography may be shown are set up by foreigners who live outside the jurisdiction. On the other hand, it by no means follows that rejection of the Perrin approach would leave such persons in the clear. Most states now have strict laws against child pornography, and there is a substantial degree of international co-operation between the law enforcement agencies of different countries, an early example of which was ‘Operation Starburst’, which involved concerted action by police forces in Britain, Europe, North America, South Africa and the Far East. In Fellows, arrests were made in England on the basis of information provided by the US authorities, who helped to identify the source of online paedophile material as F’s computer at Birmingham University.
Furthermore, anyone in England and Wales who stores photographic or pseudo-photographic images of child pornography commits an offence under the Criminal Justice and Public Order Act 1994, s. 160, whether the images have been downloaded from the internet or not. Anyone, anywhere, who knowingly assists in or procures that offence will be liable to conviction as a secondary party to that offence. According to the Court of Appeal in Robert Millar (Contractors) Ltd [1970] 1 All ER 577, secondary parties to an offence committed by a principal offender in England and Wales are punishable for that offence under English law, even if they themselves remained outside the jurisdiction. As Fenton Atkinson LJ explained:
‘They are guilty of participating in that crime, and not of some self-subsisting crime on their own account, and therefore they are in the same position as the principal offender and they are liable to be tried in this country.’
Child pornography is not freely accessible over the internet, if only because of the very real danger of arrest and prosecution. Access tends to be protected by passwords that are given out only with care. Any website operator or newsgroup user who knowingly makes such images available to persons within England and Wales must therefore possess the requisite mens rea for secondary liability under s. 160.
The Council of Europe Convention on Cybercrime
The Council of Europe Convention on Cybercrime (ETS No. 185, 2001), which is open to both member and non-member states (but not yet in force) addresses, inter alia, the problem of child pornography. Article 22 will require contracting states to criminalise relevant acts committed on their own territory, ships or aircraft; and also acts committed by their nationals abroad, if such acts are similarly punishable under local law. As far as child pornography is concerned, the Sex Offenders Act 1997 largely satisfies those requirements already, although the Criminal Justice and Public Order Act 1994, s. 160, would need to be added to the list of offences to which s. 7 of the 1997 Act applies.
The Convention does not address the problem of squish sites or filthy sites or material that involves any other bizarre sexual fetishes. Nor does it prohibit the online sale of Nazi memorabilia. It thus provides no solution to the kind of problem that arose in Perrin, or in the Yahoo case.
Conclusion
In my submission, the Court of Appeal’s decision in Perrin was wrong. P published no material in England and Wales, and should not have been convicted of any offence under English law, even if were proved that he sought to attract English subscribers to his site. That may be an unpalatable conclusion, but if the content of foreign-hosted internet sites is to be controlled, the only sensible way forward is through international agreement and co-operation. The Council of Europe’s Cybercrime Convention provides some indication of the limited areas over which widespread international agreement might be achieved.
Endnotes
1Other than in cases involving offenders who are British merchant seamen or crown servants, or those (like the appellant in Cox v Army Council) who are subject to British armed service discipline when abroad.
2In LICRA et UEJF v Yahoo Inc and Yahoo France, Tribunal de Grande Instance de Paris, 22/5/2000, a French court ruled that Yahoo Inc was in breach of French law that prohibits the sale of Nazi memorabilia. Yahoo was threatened with fines of 100,000 francs per day unless the offending material was removed from its auction lists, even though Yahoo France did not carry that material. See Carloyn Penfold, ‘Nazis, Porn and Politics: Asserting Control Over Internet Content’ 2001 (2) JILT http://elj.warwick.ac.uk/jilt/01-2/penfold.html . 3Yahoo Inc subsequently banned some Nazi items from its auction site, but it still does not fully comply with the French ruling, although the French courts cannot easily enforce that ruling because Yahoo’s assets are not based in France.
