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Racist content on US server 'within UK jurisdiction'

Court of Appeal rules it's our problem

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The law of England and Wales applies to material published online, even if it is hosted on a server in another country, the Court of Appeal has ruled. As long as a substantial measure of the activities takes place in England, its law will apply, it said.

Two men's appeals against convictions for publishing racially inflammatory material were based on their claim that the law of England and Wales should not apply because the material in question was hosted on a server in California in the US.

The Court of Appeal rejected that claim, saying that according to a precedent set in a previous case domestic law will apply so long as much of the activity in question took place in the UK.

The original trial judge said that that previous case, in which the Crown took a case against Wallace Duncan Smith, meant "that the Crown Court had jurisdiction to try the appellants for their conduct because a substantial measure of the activities constituting the crime took place in England," according to the Court of Appeal.

"It seems to us that the substantial measure test not only accords with the purpose of the relevant provisions of the [Companies Act at issue in that previous case] it also reflects the practicalities of the present case," said Lord Justice Scott Baker in his ruling.

Stephen Whittle had been found to have written a number of articles that were derogatory of Jewish and black people and likely to stir up racial hatred. They were edited and put online by Simon Guy Sheppard.

Lord Justice Scott Baker agreed with the original trial court's analysis that this activity was within the jurisdiction of English law.

"The judge pointed out that the material complained of was prepared in England and Wales, was uploaded onto the website from England and Wales and that this must have been done by Sheppard in the knowledge and with the expectation and intent that the material should be available to the public or a section of it within the jurisdiction in England and Wales," he ruled. "He noted there were references to postage for people living in England and Wales should they wish to have the materials sent to them by post. Thus it was in the contemplation of Sheppard that people in England and Wales should have access to the material which he posted on the website."

The Court of Appeal also ruled that the material constituted 'writing' and so was covered by the Public Order Act, which contains the offences of publishing racially inflammatory material. Just because it was on the internet did not mean that it did not count as 'written material' covered by the Act, the ruling said.

"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," said the judgment. "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."

Lawyers for the two men also argued that there was no actual 'publication' of the material because there was no actual proof that anybody had read it. The Court of Appeals dismissed this claim.

"[The original trial] judge put it correctly when he said that what the Crown had to show was that there was publication to the public or a section of the public in that the material was generally accessible to all or available to or was placed before or offered to the public and that that could be proved by the evidence of one or more witnesses," said Lord Justice Scott Baker.

"The point that there cannot be publication without a publishee is in our judgment fundamentally misconceived," he said. "It is 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."

See: The ruling

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OUT-LAW.COM is part of international law firm Pinsent Masons.

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