- On 16th
October 2000 in the Crown Court at Southwark the appellant was convicted of
publishing an obscene article (Count 1 in the indictment) and on 6th
November 2000 he was sentenced to 30 months imprisonment. He now appeals against
conviction and sentence by leave of the single judge.
Facts
- The obscene
article in question was a web page on the internet, and the case for the prosecution
was that on 25th October 1999 PC Ysart, an officer with the Obscene
Publications Unit, in the course of his duties, at Charing Cross Police Station
used a computer to access the web page which he found at an identified site.
What he did was video-recorded, so in due course the jury was able to see
what he found – people covered in faeces, coprophilia or coprophagia, and
men involved in fellatio. That web page, and what was shown on it was the
subject matter of count 1. It was in the form of a trailer, a preview, available
free of charge to any one with access to the internet. Any one wanting more
of the type of material which it displayed could click on to a link marked
"subscription to our best filthy sites." The officer did that, and provided
his name, address and credit card details. He was then given access to a further
web page which formed the subject matter of count 2 in the indictment, of
which the appellant was acquitted.
- On 12th
November 1999 the officer visited the web site again, and the web page which
he viewed on that occasion formed the subject matter of count 3, of which
again the appellant was acquitted. He did not re-visit the preview page to
which count 1 in the indictment refers.
- Police enquiries
then led to the appellant, whose home at Millenium Harbour, London, E14 was
visited on 16th November 1999 by four officers who had a search
warrant. The appellant was there, and he was arrested. The premises were searched,
and various items were recovered. He was then interviewed, with the assistance
of a French interpreter, and in the presence of his solicitor. He said he
was a director of Piazza Financial Services, and registrant (or owner) of
website URL.www.sewersex.com. That website was registered to a company called
Metropole News Group. At a further interview on 22nd March 2000
the suggestion was raised by the appellant that some competitor might have
put something onto his website. There was also some discussion of Metropole's
activities in North America, and the appellant accepted that he was a majority
shareholder. He said that he accepted responsibility for its activities, and
where sites were developed abroad they were legal where they were managed.
Formal Admission.
- When the case
came on for trial at Southwark Crown Court in October 2000 counsel then appearing
for the appellant made a formal admission on his behalf –
"It
is agreed and accepted by the defendant that he was legally responsible for
the publication of the articles referred to in counts 1, 2 and 3 on the indictment."
Preliminary
submissions.
- Counsel then
made three preliminary submissions – first that the imprecision of the offence
charged in each of the counts of the indictment was such that at the time
of the alleged offending the appellant was not able to regulate his conduct
so as to avoid committing a criminal act, as required by Article 7 of the
European Convention on Human Rights. By way of example, count 1 in the indictment
read as follows –
Statement
of offence
Publishing
an Obscene Article, contrary to section 2(1) of the Obscene Publications Act
1959.
Particulars
of Offence
Stephane Laurent
Perrin, on the 25th day of October 1999 published an obscene article
namely the web page on the internet at HTTP:/WWW. MetropoleNewsGroup.com/Preview.HTML.
- The second submission
was that the court had no jurisdiction because on the committal papers there
was no sufficient evidence of publication within the jurisdiction.
- The third submission
was that as only PC Ysart appeared to have seen the material there was insufficient
evidence of it being seen by persons who will tend to be depraved and corrupted
by it.
- The judge ruled
in favour of the Crown in relation to all three submissions, and the trial
then proceeded.
The Trial.
- The appellant
did not give evidence, and called no witnesses. The statutory definition of
what is deemed to be obscene is in section 1(1) of the Obscene Publications
Act 1959, which states -
"an
article shall be deemed to be obscene if its effect or (where the article
comprises two or more distinct items) the effect of any one of its items is,
if taken as a whole, such as to tend to deprave and corrupt persons who are
likely, having regard to all relevant circumstances, to read, see or hear
the matter contained or embodied in it."
The
judge directed the jury faithfully in accordance with the statute by saying
at 7E of the transcript -
"The
law says an article shall be deemed to be obscene if its effect or (where
the article comprises two or more distinct items) – and here of course you
have different images haven't you – the effect of any one of its items is,
if taken as a whole, such as to tend to deprave and corrupt persons who are
likely, having regard to all relevant circumstances, to read, see or hear
the matter contained or embodied in it."
The
judge then went on to say –
"All
relevant circumstances, members of the jury, since we are talking about modern
times, includes the sort of people who these days who have personal computers
and who have modems and who have access to surf the internet. I suppose ten
years ago it would have been very few people, wouldn't it, but now, it is
a matter for you, you may think there are many people of all ages who sit
possibly in their bedrooms at home surfing the internet. Therefore, it is
a question for you to decide, having regard for all the relevant circumstances,
who might read, see or hear of course does not apply, really does it, the
matter contained or embodied in this material which you are considering."
A
little later the judge said –
"The
definition of obscenity, members of the jury, contains no requirement as to
the number of persons which the articles might corrupt or deprave, but if
the seller of pornographic material has a large number of customers who are
not likely to be corrupted by such material, he does not thereby acquire a
licence to expose for sale, or sell such material to a small number of customers
who are likely to be corrupted by them."
And
again a little later, at 15B the judge said –
"This
case you are trying is said to involve internet pornography and the case is
that this defendant published these three web pages which are referred to
in the indictment at counts 1 to 3. He does not deny that he published them,
members of the jury, because of course you have got that formal admission,
that he was responsible for them. The question for you to decide is whether
the material is obscene in accordance with the quite elaborate definition
that I have given you."
- There was, of
course, a distinction between count 1 and the other two counts. That distinction
may explain the verdict, and the judge highlighted it in his summing up, saying
that count 1 "was material which apparently could be accessed by a person
who didn't have to become a member by using a credit card to subscribe""
- After the jury
had retired they asked this question –
"Mention
of obscenity 1969. Number of persons or proportion of readers likely to be
affected. Need clarification on significance of number."
The
judge discussed the question with counsel, and then said to the jury –
"Members
of the jury, doing the best I can, the case that I referred to in 1969, the
Court of Appeal stated that the jury should in that case, in 1969 or sometime
before 1969 because it came to the Court of Appeal in 1969, should have been
directed to consider whether the effect of the book in that case was to tend
to deprave or corrupt a significant number of those persons likely to read
it. However, in another case that came before the House of Lords in 1972,
so three years later, but still some decades ago, .. one of their lordships
observed that although such direction would have been suitable on the facts
of the case, in other words that case, the phrase 'significant proportion'
cannot be safely transplanted into cases of a different character. So whether
it applies in this case, members of the jury, bearing in mind the different
character of this case, may be a matter for you to determine. Of course, we
are dealing with matters in 1999; we are dealing with the internet, aren't
we, and computer porn as opposed to photographs or magazines, material of
that nature. I have already directed you, members of the jury, that with regard
to count 1 different considerations may apply, it is a matter for you to decide.
With regard to count 1 that was preview material that didn't have to be paid
for by becoming a member. So until the stage when you have to pay with your
credit card and become a member, everything that PC Ysart saw was freely accessible
to any one who wanted to look or had access to look without any passwords
or other means of restricting access."
The
judge then turned to the statutory definition of obscenity and said that it
–
"Refers
to persons which means some persons though it was said by his lordship in
that case, I think in a suitable case, if the number of persons likely to
be affected is so small as to be negligible, really negligible, the de minimis
principle may be applied. In other words, taking out the latin, if only negligible
numbers were involved then it would not be covered by the test of obscenity,
there have to be numbers of some significance.
But,
I go on to what was said in that case, -
If
the seller of pornographic books (or material in this case) has a large number
of customers who are not likely to be corrupted by such material he does not
thereby acquire a licence to expose for sale or sell such material to a small
number of customers who are likely to be corrupted by it.
Because
as I said before, in that House of Lords case, it was held that the Obscene
Publications Act was not merely concerned with the once and for all corruption
of the wholly innocent, it equally protected the less innocent from further
corruption and the addict from feeding or increasing his addiction."
The
jury was then sent out to continue their deliberations. In due course, as
we have said, they returned verdicts of not guilty in relation to counts 2
and 3, and convicted on count 1.
The appeal.
- There are four
grounds of appeal against conviction advanced by fresh counsel, Mr Fulford
QC and Mr Southey.
- The first ground
of appeal is that the conviction violated the appellant's rights under Article
10 of the European Convention – not a point taken in the court below. Next
it is contended that the conviction violated his rights under Article 7, in
that his conduct was not prescribed by law. The third ground of appeal is
that the judge was wrong to reject the submission that the only relevant publication
of the web page was to the officer who down-loaded it, and therefore it is
wrong to test obscenity by reference to others who might have access to the
preview page. Finally it is contended that in answering the jury's question
the judge was wrong not to say in clear terms that it was necessary for a
significant proportion of those visiting the web page to be affected by it.
- In his submissions
to us Mr Fulford began by addressing the two grounds of appeal founded on
domestic law, namely grounds 3 and 4 and we will adopt the same approach.
Ground 3: Relevant
Publication
- In quoting from
the summing up we have already set out the terms of section 1(1) of the Obscene
Publications Act 1959 as amended. It states that an article shall be deemed
to be obscene if its effect is "such as to deprave and corrupt persons who
are likely, having regard to all relevant circumstances, to .. see or hear
the matter contained or embodied in it." Section 1(2) defines "article" in
a way that clearly embraces the web page with which we are concerned, and
section 1(3) provides that for the purposes of the Act a person publishes
an article 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 ...
where the matter is data stored electronically, transmits that data.
"
The
words in italics were added by the Criminal Justice and Public Order Act 1994
section 168(1) and Schedule 9 Paragraph 3.
- So far as count
1 was concerned the sole evidence of publication adduced at the Crown Court
was of one visit by PC Ysart to the relevant web page, the preview page. There
was, as Mr Fulford pointed out, no evidence as to how long the web page had
been in the form in which it was when seen by PC Ysart, and there was no evidence
as to who, other than the officer, had visited that web page. Mr Fulford submitted
that the court was not entitled to speculate. Such web pages are easy to alter,
and although there was evidence of visits to pages for which payment had to
be made (i.e. those featured in counts 2 and 3) those pages could be visited
without first visiting the preview page. Mr Fulford submitted that in reality
the preview page would not be visited by accident. To reach it a viewer would
have to type in the name of the site, or conduct a search for material of
the kind displayed. That, Mr Fulford submitted, is the modern equivalent of
entering a shop selling pornographic books, and selecting a book, and there
is authority for the proposition that if such a book is only seen by an investigating
officer who is unlikely to be depraved and corrupted by it the requirements
of section 1(1) are not satisfied.
- In R v Barker
[1962] 46 Cr App R 227 the Court of Criminal Appeal considered section 1 of
the 1959 Act in its unamended form. The appellant had advertised in magazines
and four customers had then sent for and obtained from him photographs which
were said to be obscene. Ashworth J, giving the judgment of the Court, analysed
section 1(3)(a) of the Act. Paragraph (a) is not directly relevant for present
purposes, but the analysis is informative. At 230 the judge said –
"The
forms of publication included in the definition in section 1(3)(a) fall into
three distinct groups: in one group, comprising the words 'sells, lets on
hire, gives, or lends' publication is to an individual; in the second group,
comprising the words 'distributes, circulates,' publication is on a wider
scale, involving more than one person; in the third group a mere offer for
sale or letting on hire constitutes publication."
Applying
that approach to paragraph (b), a mere transmission of data constitutes publication,
and it is clear from the decision of this court in Waddon 6th
April 2000 unreported, that there is publication for the purposes of section
1(3) both when images are uploaded and when they are downloaded.
- The court in
Barker then addressed itself to the questions which arise in relation
to section 1(1) once publication is established but, as Mr Patterson for the
respondent pointed out in his submissions to us, the analysis was specifically
confined to cases falling within the first group which had been identified
in the analysis of section 1(3)(a). The judgment continued –
"In
a case falling within the first group the first issue for the jury (assuming
that publication is admitted) is whether the effect of the article is such
as to tend to deprave and corrupt the individual to whom it is published.
The second issue is whether any other person or persons were likely to see
the article. In this connection the issue is not whether republication has
or has not taken place, but whether it could reasonably have been expected.
If the answer to the second issue is 'yes', a third issue will arise, namely,
whether the article is such as to tend to deprave and corrupt the person or
persons to whom republication could reasonably have been expected."
The
first issue had particular relevance to a case where the publication relied
upon was in group one. It would for example have no particular relevance to
a publication in the third group, or to a publication within the section 1(3)(b)
of the type with which we are concerned, but the second and third issues suitably
reformulated would remain relevant. The Court would still have to consider
–
(1)
whether any person or persons were likely to see the article, and if so –
(2)
whether the effect of the article, taken as a whole, was such as to tend to
deprave and corrupt the person or persons who were likely having regard to
all relevant circumstances, to see the matter contained or embodied in it.
- The other decision
to which our attention was drawn in relation to this ground of appeal is R
v Clayton and Halsey [1963] 1 QB 163. That too was a decision of the Court
of Criminal Appeal. In that case two experienced police officers in plain
clothes had entered a bookshop owned by Clayton in which Halsey was his assistant.
The officers had each selected a packet of photographs which formed the subject
matter of the substantive charges. In cross-examination they both agreed that
they had seen thousands of photographs of a similar character in the course
of their work, and that the photographs did not arouse any feeling in them
whatsoever. Having set out the relevant provisions of the 1959 Act Lord Parker
CJ said at 167 that "in the case of the publication of an article by way of
sale to a particular person the test of obscenity is whether the effect of
the article in question upon that person was such as to tend to deprave or
corrupt him."
- He then referred
to Barker and to the facts of the case which was before the Court.
At 168 Lord Parker continued –
"This
Court cannot accept the contention that a photograph may be inherently so
obscene that even an experienced or scientific viewer must be susceptible
to some corruption from its influence. The degree of inherent obscenity is,
of course, very relevant, but it must be related to the susceptibility of
the viewer. Further, whilst it is no doubt theoretically possible that the
jury could take the view that even a most experienced officer, despite his
protestations, was susceptible to the influence of the article yet, bearing
in mind the onus and degree of proof in a criminal case, it would we think
be unsafe and therefore wrong to leave that question to the jury."
- Mr Patterson
submitted, and we accept, that the present case is different from Clayton
and Halsey because this is not a case of publication of an article by
way of sale to a particular person. That is not the type of publication relied
on. The publication relied on in this case is the making available of preview
material to any viewer who may choose to access it (including of course vulnerable
young people) and in such a situation the prosecution was entitled to invite
the jury to look beyond PC Ysart and to answer the two questions which we
distilled from the decision in Barker. That was what was done in this
case, and consequently in our judgment there is no substance in the third
ground of appeal. Before parting with this ground of appeal we emphasise that
section 1(1) of the 1959 Act only requires the jury to be satisfied that there
is a likelihood of vulnerable persons seeing the material. The prosecution
does not have to show that any such person actually saw it or would have seen
it in the future.
Ground 4: The
jury question.
- Mr Fulford contends
that in law it was necessary if the jury was to convict for them to be satisfied
that a significant proportion of those visiting the web page were vulnerable,
that this issue was not clearly dealt with in the summing up in the passages
quoted above, and that, when it was highlighted by the jury's question, the
answer to that question given by the judge was muddled. We agree that the
answer was far from clear, but in order to reach a conclusion as to the effect
of that lack of clarity it is necessary first to decide whether Mr Fulford
is right in his submission as to the law.
- In R v Calder
and Boyars Ltd [1968] 52 Cr App R 706 the appellants had been convicted
of publishing an obscene article, namely the book "Last Exit to Brooklyn".
Thirteen thousand copies of the book had been sold before the prosecution
was launched, and when dealing with the judge's direction in relation to section
1(1) of the 1959 Act as to the meaning of obscenity Salmon LJ, giving the
judgment of the Court, said at 711 –
"The
only possible criticism that can be validly made of this part of the summing
up is that the learned judge gave no guidance to the jury on the difficult
question as to what section 1 meant by 'persons' who are likely to read that
book. Clearly this cannot be all persons; nor can it mean any one person,
for there are individuals who may be corrupted by almost anything. On the
other hand, it is difficult to construe 'persons' as meaning the majority
of persons or the average reader, for such a construction would place great
difficulties in the way of making any sense of section 4. The Legislature
can hardly have contemplated that a book which tended to corrupt and deprave
the average reader or majority of those likely to read it could be justified
as being for the public good on any ground. This Court is of the opinion that
the jury should have been directed to consider whether the effect of the book
was to deprave and corrupt a significant proportion of those persons likely
to read it. What is a significant proportion is a matter entirely for the
jury to decide. It has been persuasively argued by (counsel) that in the absence
of such a direction the jury may have thought that they were bound to hold
the book obscene if they came to the conclusion that it tended to corrupt
and deprave perhaps only four or five of the thirteen thousand persons who
bought it. On the other hand, the jury may have thought that they could convict
only if the book tended to deprave and corrupt the average reader or the majority
of its readers. This court does not consider that the absence of any direction
upon the number of persons who might be corrupted and depraved could, by itself,
vitiate the conviction."
Section
4 of the Act is the section which enables the defendant to argue that publication
of the article is justified as being for the public good. It is not a section
with which we are concerned in the present case.
- In our judgment
the passage from the judgment in Calder and Boyars which we have cited
was an attempt by the court to address a particular problem created by the
facts of that case. Where a large number of copies of the book had gone into
circulation and, in a situation where a section 4 defence was raised, if the
word "persons" was given the widest possible meaning injustice might be done
to the defendant because, as Salmon LJ said, "there are individuals who may
be corrupted by almost anything". Although the words of the statute remain
the same, their application is bound to be somewhat different when what is
alleged to be obscene is accessible material on a web page in relation to
which a section 4 defence could not realistically be raised, and not the printed
word in thirteen thousand copies of a book.
- In DPP v
Whyte [1972] AC 849 the respondents were booksellers charged with having
obscene articles, namely books and magazines for publication for gain. They
were acquitted on the basis that their clientele was already depraved and
corrupted, but the House of Lords held that even those already depraved and
corrupted could be corrupted further. At 863B Lord Wilberforce said –
"The
Act is not merely concerned with the once for all corruption for the wholly
innocent; it equally protects the less innocent from further corruption, the
addict from feeding or increasing his addiction. To say this is not to negate
the principle of relative 'obscenity': certainly the tendency to deprave and
corrupt is not to be estimated in relation to some assumed standard of purity
of some reasonable average man. It is the likely reader. And to apply different
tests to teenagers, members of men's clubs or men in various occupations or
localities would be a matter of common sense."
The
last two sentences are particularly relevant in the context of this case where
the prosecution contends that likely viewers of preview material did include
the young with access to the internet.
- Lord Pearson
directly addressed the numerical issue which we are considering, saying at
864H that in the statutory definition "there is no requirement as to the number
of persons, or as to the proportion of its readers, which the article will
tend to corrupt and deprave. The word 'persons' is plural, but it may include
the singular. I think in some cases the rule de minimis non curat lex would
suitably be applied." He then referred to the direction suggested by Salmon
LJ in Calder and Boyars and continued –
"That
would indeed have been a suitable direction in that case because, on a favourable
view, the book could have been regarded as tragic and pathetic rather than
pornographic and, if the readers of the book likely to be corrupted by it
were only a 'minute lunatic fringe' rather than a significant proportion,
the book could not fairly be regarded as obscene. The 'minute lunatic fringe'
would be negligible. But I do not think the phrase 'significant proportion'
can safely be transplanted to cases of a different character. There is the
danger, for instance, of leading a book seller to believe that, so long as
he sells a comparatively large number of copies of a pornographic book to
persons not likely to be corrupted by it, he can with impunity sell a comparively
small number of copies to persons who are likely to be corrupted by it. In
such a case, if the comparatively small number of copies is not so small as
to be negligible, the statutory definition should be applied according to
its terms: the book's effect, taken as a whole is such as to tend to deprave
and corrupt persons who are likely, having regard to all relevant circumstances,
to read it. 'Persons' means some persons. Cockburn CJ in R v Hicklin
LR 3 QB 360 did not suggest any requirement as to the number of persons, or
as to the proportion of its readers, which a book might tend to deprave and
corrupt."
At
866F Lord Pearson returned to the point saying –
"The
statutory definition has been set out above. It refers to 'persons', which
means some persons, though I think in a suitable case, if the number of persons
likely to be affected is so small as to be negligible – really negligible,
the de minimis principle might be applied. But if a seller of pornographic
books has a large number of customers who are not likely to be corrupted by
such books, he does not thereby acquire a licence to expose for sale or sell
such books to a small number of customers who are likely to be corrupted by
them."
Our
attention was also invited to passages from other speeches, but for present
purposes we do not set out those passages here.
- In R v O'Sullivan
[1995] 1 Cr App R 455 the defendant was alleged to have had control of obscene
articles (magazines and videos stored in lock-up garages) with a view to their
publication by sale or offer for sale in sex shops. It was therefore necessary
to have regard not only to the test of obscenity to be found in section 1(1)
of the 1959 Act but also to section 1 of the Obscene Publications Act 1964
which deals specifically with obscene articles intended for publication for
gain. Section 1(3) of the 1964 Act provides that –
"In
proceedings brought against a person under (section 2 of the 1959 Act) for
having an obscene article for publication for gain the following provisions
shall apply in place of subsections (5) and (6) of that section, that is to
say –
(a)
.....
(b)
the question whether the article is obscene shall be determined by reference
to such publication for gain of the article as in the circumstances it may
reasonably be inferred he had in contemplation and to any further publication
that could reasonably be expected to follow from it, but not to any other
publication."
- We must therefore
approach the decision in O'Sullivan recognising that in that case the
relevant statutory provisions included provisions which had no application
in the present case. We are not concerned with what publication it may reasonably
be inferred that the appellant had in contemplation, or with foreseeable re-publication.
After dealing with publication of that kind Bell J giving the judgment of
the court said at 466G "in so far as the jury were sure of any of those publications,
it had to be sure, finally, that the effect of the contemplated publication
or the further publication which could reasonably be expected to follow was
such as to tend to deprave and corrupt a significant proportion, that is more
than a negligible number of those who were likely, having regard to all relevant
circumstances, to read or see the matter contained, or embodied in the relevant
magazine or video: see section 1(1) of the 1959 Act."
At
467C the judge continued –
"In
our view it would be better for a judge faced with the problems posed by the
1959 and 1964 Acts to follow the order of the statutory provisions ... without
attempting to improve or re-define the wording of the Acts, as the Court in
Calder and Boyars Ltd advised, save for some reference to the fact
that the persons likely to be corrupted should amount to more than a negligible
number."
- Mr Fulford relies
on those passages to support his submission that a clear reference to a tendency
to corrupt more than a negligible number of viewers was a necessary part of
a proper direction in the present case. We do not agree. As Lord Pearson indicated
in DPP v Whyte at 865 the direction, which was entirely appropriate
in Calder and Boyars Ltd and, we would add, in O'Sullivan, cannot
safely be transplanted to cases of a different character. Where, as in the
present case, there is and can be no suggestion that publication is for the
public good and the provisions of the 1964 Act are not in issue we see no
reason why the task of the jury should be complicated by a direction that
the effect of the article must be such as to tend to deprave and corrupt a
significant proportion, or more than a negligible number of likely viewers.
Such a direction is all too likely to give rise to a request for further assistance
as to what proportion is significant, or what number is negligible, and where
the direction is unnecessary it is much better, in our judgment, for the jury
to be directed simply in accordance with the words of the statute: see paragraph
10 above.
- Nonetheless,
despite the somewhat rambling nature of the judge's directions in response
to the question posed by the jury, we consider that it was made clear that
it was necessary for more than a negligible number of persons to be likely
to see the material, and in our view that did not detract from the wording
of the statute in any way disadvantageous to the appellant. Even if we had
concluded that a "significant proportion" direction should have been given
in clear terms we note that in both Calder and Boyars Ltd and in O'Sullivan
the court concluded that the absence of such a direction did not vitiate the
convictions, and we would have come to the same conclusion.
Ground 1: Article
10: Appellant's case
A. General Submissions.
- Article 10 of
the European Convention on Human Rights gives everyone a right to freedom
of expression, but Article 10(2) provides that the exercise of that freedom
–
"...
since it carries with it duties and responsibilities may be subject to such
formalities, conditions, restrictions or penalties as are prescribed by law
and are necessary in a democratic society .... for the prevention of disorder
or crime, for the protection of health or morals."
In
his first ground of appeal the appellant contends that there was no evidence
to rebut his statements in interview that the major steps involved in publishing
the web page that resulted in his conviction were in a jurisdiction where
the material published was lawful. He relies on "the lack of precision in
the statutory definition of obscenity".
- Mr Fulford's
core submission in relation to this part of the case is that because of the
world wide accessibility of the internet, helpfully described in the opinion
of the United States Court of Appeal (Third Circuit) in ACLU v Reno
(No 3) [2000] 217 F.3d 162 at 168-169 any court or jury asked to consider
whether there has been publication by a defendant of a web page which is obscene
should be instructed to consider first where the major steps in relation to
publication took place, and only to convict if satisfied that those steps
took place within the jurisdiction of the court. Mr Fulford frankly concedes
that there is no English or European authority to support that submission,
which involves writing words into section 1(3) of the 1959 Act, but he submits
that, having regard to Articles 7 and 10 that adjustment or "interpretation"
is necessary and represents a workable solution to a problem created by a
relatively new medium. As he points out, there was no evidence as to where
the data files were created and posted, and there was no evidence as to the
location of the server.
- Mr Fulford reminded
us that in Sunday Times v UK (No 1) [1979] 2 EHRR 245 the European
Court of Human Rights stated at paragraph 49 of its judgment –
"The
following are two of the requirements that flow from the expression 'prescribed
by law'. 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."
Mr
Fulford submitted that because of the worldwide nature of the internet it
is difficult for the publishers to comply with the statutory requirements
of individual states, and if they are obliged to do so the most restrictive
laws will prevail.
- In Groppera
Radio AG v Switzerland [1990] 12 EHRR 321 the applicant had broadcast
from Italian territory radio programmes intended for the Swiss which were
received over the air and through redistribution on Swiss territory by Swiss
companies operating cable networks. Swiss legislation inhibited the activities
of the Swiss companies and the applicant complained that the ban on cable
transmissions infringed the applicant's rights under Articles 10 and 13 to
impart information and ideas regardless of frontiers. The European Court found
the Swiss laws to be sufficiently accessible, and that there was no breach
of either Article 10 or Article 13. The decision in relation to Article 10
was by a majority, and Mr Fulford invited our attention to the dissenting
opinion of Judge Pettiti who focussed on the fact that Groppera was an Italian
law company operating in Italy. At 349 he pointed out the value of trans-border
broadcasts in encouraging democracy, and said that the court should uphold
and promote freedom of expression.
- Mr Fulford then
invited our attention to a number of decisions of courts in the United States
of America where attempts to protect vulnerable viewers have been held to
fall foul of the provisions of the constitution. In ACLU v Reno (No 3)
(supra) the court reluctantly upheld the issue of a preliminary injunction
against the Attorney-General to prevent the enforcement of the Child Online
Protection Act on the basis that it violated free speech guarantees. At 173
the court made it clear that it based its determination on COPA's reliance
on "contemporary community standards" which in the American Libraries
case [1997] 969 F.SUPP. 160 had been held not to exist nationwide. At 176
the court recognised that "web publishers cannot restrict access to their
site based on the geographic locale of the internet user visiting their site",
and it is clear from the judgment that the argument which we have heard as
to the power of the most restrictive state laws was fully deployed. It is
however important to recognise that there is nothing in the American authorities
to suggest that the court had any power to balance the needs of vulnerable
children against the constitutional requirement to safeguard freedom of speech.
- Mr Fulford submits
that in Europe the problems are the same as those which have been experienced
in the United States. Community standards as to what tends to deprave and
corrupt are not Europe-wide, and the court should look at the problem from
the point of view of a publisher who is prepared to comply with the law. He
cannot attach a condition that there will be no access to his material in
a given country, although a service-provider could operate such a limitation.
- In the American
Libraries case (supra) the District Judge in New York emphasised the importance
of inter-state commerce and said at 183 that "haphazard and unco-ordinated
state regulation can only frustrate the growth of cyberspace." The same points
were made by the District Court in Michigan in Cyberspace Communications
Inc. v Engler [1999] 55 F.Supp. 2d 737, and Mr Fulford submits that they
apply to the case with which we are concerned.
- Mr Fulford pointed
out that Article 49 of the European Community Treaty provides that –
"restrictions
on freedom to provide services within the Community shall be prohibited in
respect of nationals of Member States who are established in a State of the
Community other than that of the person for whom the services are intended."
But
Article 46 enables the provision of services to be restricted stating that
–
"The
provisions of this Chapter and measures taken in pursuance thereof shall not
prejudice the applicability of provisions laid down by law, regulation or
administrative action providing for special treatment of foreign nationals
on grounds of public policy, public security or public health."
As
Mr Fulford accepts, limitation on access to pornography can be justified on
grounds of public policy, and we are unable to discern anything which the
provisions of the Treaty add to the submissions made in relation to Article
10 of the Convention.
- Our attention
was drawn to the European Commission's Green Paper on the Protection of Minors
and Human Dignity in Audio Visual and Information Services [1996] which recognises
the urgency of the problem, and "the limits to purely national solutions and
the difficulty of devising and applying world wide solutions". The aim of
the paper was to "help create the conditions for the establishment of a coherent
framework for the protection of minors and human dignity in audio visual and
information services in the European Union." As can be seen from the body
of the paper, the aim has yet to be achieved, but, as the paper recognises,
the present position is that –
"Prohibitions
on general categories of material detrimental to human dignity, such as material
that is obscene, contrary to sound morals or indecent, exist in most Member
States. Sometimes the terms are defined by the legislation; elsewhere, their
meaning falls to be determined by the courts. And the same concept may be
used to underpin both a blanket prohibition and a more flexible solution in
which material is restricted depending on the potential audience or on the
medium used."
Some
types of material (i.e. child pornography) are regarded by the paper as unacceptable
anywhere, but as to the other types of material the Commission reported that
–
"The
differences between national rules and their lack of transparency makes it
more difficult to apply existing national rules to international services
and networks and involve the industries in questions at European level. Moreover,
they can generate disproportionate barriers to the free movement of services
in the Community and make it harder to defend shared values in international
fora."
B. Prescribed
by law.
- Having concluded
his general submissions in support of the argument that an internet publisher
should only be prosecuted, if at all, in the country where the major steps
in relation to publication could be shown by the prosecution to have taken
place, Mr Fulford went on to focus on the wording of Article 10(2) and to
submit that the offence charged is not sufficiently "prescribed by law" because
the statutory definition of obscenity lacks sufficient precision, and the
restriction which the statute imposes is not shown to be "necessary in a democratic
society".
- Mr Fulford submitted
that an activity will only be satisfactorily prescribed by law if the person
contemplating engaging in it can know with reasonable certainty by reference
to statute and/or case law whether what he has contemplated doing will be
held to be illegal. That necessary degree of certainty is, Mr Fulford submits,
lacking where the critical decision as to whether an article is to be regarded
as obscene is habitually left to a jury. In Muller v Switzerland [1991]
13 EHRR 212 the European Court rejected the submission that the word "Obscene"
in the Swiss Criminal Code was too vague to enable the individual to regulate
his conduct, saying at paragraph 29 of the judgment that –
"The
need to avoid excessive rigidity and to keep pace with changing circumstances
means that many laws are inevitably couched in terms which, to a greater or
lesser extent, are vague ..... criminal law provisions on obscenity fall within
this category."
The
Court went on to point out that there were a number of decisions which were
accessible and which supplemented the letter of the Code. That, Mr Fulford
submits, cannot be said of jury decisions which are not accompanied by reasons.
The recent decision of Hooper J in R v Video Appeals Committee of British
Board of Films Classification Times 7th June 2000 shows, it
is submitted, the problems which can arise with different views of what constitutes
obscenity. Mr Fulford accepts that the problem will not arise in every case.
In Wingrove v UK [1997] 24 EHRR 1 the European Court recognised at
paragraph 44 of the judgment that "the offence of blasphemy cannot by its
very nature lend itself to precise legal definition" but in paragraph 43 the
Court went on to say –
"There
appears to be no general uncertainty or disagreement between those appearing
before the Court as to the definition in English law of the offence of blasphemy
... having seen for itself the content of the video work, the Court is satisfied
that the applicant could reasonably have foreseen with appropriate legal advice
that the film, particularly those scenes involving the crucified figure of
Christ, could fall within the scope of the offence of blasphemy."
C. Necessary
in a Democratic Society
- Mr Fulford accepts
that under Convention law regulation of morals is normally regarded as a matter
for individual states, but he submits that a more stringent view should be
taken in relation to the internet because of the difficulty of knowing where
it will be viewed. Different considerations arise in relation to material
such as child pornography, which almost everyone agrees should be banned,
but for the rest it is appropriate to have regard to reality. If a mass of
such material is going to be available anyway, why is it necessary in the
democratic society to attempt to inhibit a small part of it? If inhibition
is necessary it can be achieved more effectively in other ways, for example
by industry self-regulation, blockage by service providers, and steps taken
in the home.
Ground 2: Article
7
- As Mr Fulford
recognised, this ground of appeal, namely that the conduct complained of was
not prescribed by law for the purposes of Article 7, added nothing to the
submissions which he made under Article 10, and we need say no more about
it.
Article 10: Respondent's
case
- Mr Patterson
accepted that Article 10 was engaged, but submitted that there is here a restriction
prescribed by law and necessary in a democratic society, as recognised by
Article 10:2. He submitted, and we accept, that the protection to be afforded
to freedom of expression varies to some extent with the subject matter. Responsible
exchange of political ideas attract more protection than projection of pornography
for gain (see Wingrove (supra) at paragraph 58 of the judgment).
- As to what is
prescribed by law Mr Patterson submits that the1959 Act and the decisions
made under it do provide the necessary degree of guidance. Section 1(1) gives
to the word "obscene" a restricted meaning which is more demanding than its
dictionary definition. The effect must be such as to tend to deprave and corrupt.
There was no such definition in the Swiss Code considered in Muller
(supra), and prior to that in 1976 the European Court of Human Rights had
considered the application of Article 10 to the English legislation in Handyside
v UK [1979 to 1980] 1 EHRR 737, the case about the Little Red School Book.
In that case it was accepted by the applicant that the activities complained
of were "prescribed by law" and in paragraph 44 of its judgment the Court
so found. As already noted the European Court in Wingrove had no difficulty
with the English law of blasphemy, and in Hoare v UK application 31211/96
unreported, a case concerned with the mail order supply of pornographic video
tapes, the European Commission found that the offence alleged under section
2(1) of the 1959 Act was prescribed by law, for the legitimate purpose of
protecting morals. Mr Patterson is therefore entitled to submit, and we accept,
that in the present case not only does the statute speak for itself, but there
is also a body of European authority to support the proposition that for the
purposes of Article 10:2 the offence of which the applicant was convicted
was for a legitimate purpose prescribed by law.
- As to what is
necessary in a democratic society, in Handyside the European Court
accepted at paragraph 48 that "it is not possible to find in the domestic
law of the various Contracting States a uniform European conception of morals."
Laws vary from time to time and place to place as to what needs to be done
by way of protection of morals, and, the court continued –
"By
reason their direct and continuous contact with the vital forces of their
countries, State authorities are in principle in a better position than the
international judge to give an opinion on the exact content of these requirements
as well as the 'necessity' of a 'restriction' or ' penalty' intended to meet
them."
Consequently,
it was said, Article 10:2 leaves to the Contract State a margin of appreciation
–
"This
margin is given both to the domestic legislator ('prescribed by law') and
to the bodies, judicial amongst others, that are called upon to interpret
and apply the law in force."
The
fact that some European States were more tolerant of the Little Red School
Book than others was not found to be persuasive. In paragraph 57 the Court
said –
"The
Contracting States have each fashioned their approach in the light of the
situation obtaining in their respective territories; they have had regard,
inter alia, to the different views prevailing there about the demands of the
protection of morals in a democratic society. The fact that most of them decided
to allow the work to be distributed does not mean that the contrary decision
of the Inner London Quarter Sessions was a breach of Article 10."
In
Muller the approach was precisely the same, the Court saying at paragraph
35 of its judgment –
"The
view taken of the requirments of morals varies from time to time and from
place to place, especially in our era, characterised as it is by a far-reaching
evolution of opinions on the subject. By reason of their direct and continuous
contact with the vital forces of their countries, State authorities are in
principle in a better position than an international judge to give an opinion
on the exact content of these requirements as well on the 'necessity' of a
'restriction' or 'penalty' intended to meet them."
In
Wingrove the same point was made by the Court at paragraph 53 when
it said –
"In
examining whether restrictions to the rights and freedoms guaranteed by the
Convention can be considered 'necessary in a democratic society' the Court
has, however, consistently held that the Contracting States enjoy a certain
but not unlimited margin of appreciation. It is, in any event, for the European
Court to give a final ruling on the restriction's compatibility with the Convention
and it will do so by assessing in the circumstances of a particular case,
inter alia, whether the interference corresponded to a 'pressing social need'
and whether it was 'proportionate to the legitimate aim pursued'".
Finally,
in Hoare the Commission pointed out that it could not be said "with
any degree of certainty that only the intended purchasers of the film would
have access to it and not minors". The Commission noted the absence of any
claim to artistic merit, and concluded that –
"Where
obscene video cassettes were distributed to a limited circle of viewers but
where there was no further control over them, where the official channels
of certification of videos were not used, and where no artistic merit is claimed
for the works, the applicant's conviction for publishing obscene works was
proportionate to the legitimate aim pursued."
- Of course it
can be said that the internet is different, but the problem which it presents
was addressed by Parliament when in 1994 it amended the 1959 Act and, Mr Patterson
submits, we should be slow to find that an inadequate response. In R v
DPP ex parte Kebilene [1999] 3 WLR 972 Lord Hope expressly emphasised
the importance of this discretionary area of judgment where choices have to
be made by the executive or legislature between the rights of the individual
and the needs of society, and said at 994C that "it will be easier for such
an area of judgment to be recognised where the Convention itself requires
a balance to be struck". As Mr Patterson points out, that is the situation
with Article 10.
- In HM Advocate
v McIntosh [2001] UKPC D1 the Privy Council considered whether confiscation
legislation in Scotland violated the European Convention, and Lord Bingham
said –
"The
statutory scheme contained in the 1995 Act is one approved by a democratically
elected Parliament and should not be at all readily rejected. I would for
my part endorse the conclusion of the Court of Appeal Criminal Division in
paragraph 88 of its judgment in R v Benjafield:
'It
is very much a matter of personal judgment as to whether a proper balance
has been struck between the conflicting interests. Into the balance there
must be placed the interests of the defendant as against the interests of
the public, that those who have offended should not profit from their offending
and should not use their criminal conduct to fund further offending. However,
in our judgment, if the discretions which are given to the prosecution and
to the courts are properly exercised, the solution which Parliament has adopted
is a reasonable and proportionate response to a essential public interest,
and therefore justifiable.'"
That,
Mr Patterson submits, is the approach we should adopt in this case. No one
has argued that the protection of minors and other vulnerable people is not
an important issue to be addressed. On the other side of the balance sheet,
apart from the general right to freedom of expression, there is no public
interest to be served by permitting a business for profit to supply material
which most people would regard as pornographic or obscene, using that word
in its non-statutory sense. Yet, as Mr Patterson points out, the infringement
of the appellant's freedom is limited, as can be seen by reference to the
verdict of the jury on counts 2 and 3, and, although the protection to vulnerable
people which is afforded by the 1959 Act may be limited, there is no reason
why a responsible government should abandon that protection in favour of other
limited remedies already available to parents and others as advocated by Mr
Fulford.
- The United States
authorities are, Mr Patterson submits, of limited value because of the protection
given to free speech in the United States constitution, and the different
inter-relationship between the states. The wording of Article 49 of the Treaty
is not directly relevant, nor is the dissenting opinion of Judge Pettiti in
the Groppera case.
- Finally, on
the jurisdictional point, Mr Patterson submitted that, for the reasons given
by this court in Waddon supra, there was publication when anyone accessed
the preview page, and he rejected entirely Mr Fulford's submission that a
prosecution should only be brought against a publisher where the prosecutor
could show that the major steps in relation to publication were taken within
the jurisdiction of the court. Not only would that lead to publishers taking
their major steps in countries with the most relaxed laws, but such countries
might also have little interest in prosecuting, especially if the offensive
material was targetted elsewhere.
Ground 1: Conclusion.
- In the result
we are satisfied that the statutory provision relied upon does fall within
the scope of Article 10:2. For a legitimate purpose the offence was prescribed
by law. Parliament was entitled to conclude that the prescription was necessary
in a democratic society, and the publication shown by the evidence was sufficient
to give jurisdiction to the court. We reject the suggestion that it is ever
necessary for the Crown to show where the major steps in relation to publication
were taken. Ground 1 of the Grounds of Appeal therefore fails, and as Ground
2 adds nothing it too fails. The appeal against conviction is therefore dismissed.