Racist content on US server 'within UK jurisdiction'

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 …

[Anonymous Coward]

Considered opinion

Looks like we have another exception to prove the rule that all judges live on another planet. This is a well considered, appropriately applied judgement and if they carry on like this they may end up getting treated as people who know what they are doing........shurely shome mishtake.

A clear and distinct definition of when server location is not relevant, can only hope this judge (and the previous court) get more of these cases but I suspect that the 'powers that be' are likely to look for the UK version of those nice East Texas courts where an accusation is all it takes to win a case.

[Number6]

Limited Success

I don't doubt that they can successfully prosecute the men for preparation and uploading, but I doubt if they'll be able to remove the information from the US servers because once there it's out of UK jurisdiction.

[Anonymous Coward]

finally, online activities do NOT need a new law

yes, there are *some* activities that are unique to the web and might need some special laws.

but the overwhelming part of the web is nothing more then a alternative form of what was already available in the world. So why create a new law for them? Some people seem to believe that they can do whatever they want on the web since the law doesn't cover it, this in my opinion is a mistake. If something is illegal in the real world, then it is illegal in the virtual world. The only thing remaining.... which law should apply to *international* websites?

P.S. why should they need to prove that someone have seen it or not? when you post an ad in the newspaper... how do you prove if people looked at it or not? for that matter do you need to prove if people looked at it or not? The fact that you *published* an ad is enough, the same should apply to online posts. The fact that you published it where someone *could* have seen should be enough, no further proof is needed.

[Simplepieman]

English Jurisdiction... but only when it suits!

"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.

Hmmm, try telling this to Gary McKinnon.

[jake]

Ugh.

"the offences of displaying, distributing or publishing racially inflammatory written material do not require proof that anybody actually read or heard the material."

So if I publish something on my private, globally diverse server system, that nobody but me has access to, I could be held in account for that material, despite the fact that nobody but me knows that I wrote it, much less knows that it exists? Even though it's just words stored as ones & zeros on the media of my choice?

That way lies madness ...

All y'all right-pondians really are heading for thought-crime statutes, aren't you? I don't envy you, at all ... please do something positive in the coming elections. If you are allowed to. Ta.

[Dennis]

Re: Ugh.

"So if I publish something on my private, globally diverse server system, that nobody but me has access to, I could be held in account for that material"

Read the article again.

The penultimate paragraph says:

"the material was generally accessible to all or available to or was placed before or offered to the public "

So in what way does publishing something in private make it generally accessible?

[jake]

@Dennis

I see what you are saying, but the sentence I was quoting was a trifle more broad in scope, and could be used later by lawmakers and/or prosecutors ... and probably will be. Which was my point.

[Wayland Sothcott 1]

If they could read your mind...

It says the material is published and distributed, as would be the case with a public website.

If it's protected from public viewing by your firewall then it's not published.

Having said that, if you create a cartoon of Lisa Simpson giving a blow job (2012 logo) and the police discover it whilst looking on your computer for evidence of some possible crime then yes you can get prossecuted as a paedo.

[Anonymous Coward]

Freedom of Speech, thought and Expression

You should be able to say and write anything, that is freedom of speech. These laws allow you to say what you like as long as it agrees with the politically correct establishment. If what somebody says or writes offends you, too bad, get a backbone. Life is not fair. There are already enough laws in place to take into account what happens if someone resorts to violence.

I for one am sick and tired of being told what I can and cannot read, view or say. I don't need a government nanny state to filter my news, websites or content.

If you have views that are derogatory to a certain group, go ahead publish, be seen for what you are. There will be enough people around to counter your argument. A legal system/government that tries to ban/suppress views only makes those that express those views appear to be onto to something.

Now who was it who said I may not agree with what you say, but I'll defend your right to say it.

[Anonymous Coward]

Ich bin ein auslander

No: Freedom of expression doesn't make it alright.

I don't care what Valtaire said: I will not defend the "rights" of racists to be racist, or defend their "rights" to have their views heard or published. I will fight to stop them and all their kind.

[jake]

@Fraser

"I will not defend the "rights" of racists to be racist, or defend their "rights" to have their views heard or published. I will fight to stop them and all their kind."

I disagree. Let 'em talk, so the intelligent amongst us can point and giggle. Trust me, when you call the silly idiots on it, they slink away in a hurry. Occasionally, once in a while, they actually learn that they are being idiots over simple cultural and/or skin colo(u)r differences.

Case in point: I'm as white as the driven snow, being of ethnic Finnish descent. Likewise, being an ethnic Finn, I have zero "Caucasian" blood in me. When I first enrolled at Berkeley, I applied for student aid as an ethnic minority (which is true, and the .fed agrees with me). The African American woman behind the counter got extremely bent out of shape, despite the fact that I had proof of my ethnicity. She kept going on about how "white boys don't need no help!"(sic). When I pointed out how she was being racist, based purely on the color of my skin, she went absolutely nuts ... security was called. After the usual palaver, her manager (another African American woman) realized that her employee was being stupid and apologized to me. Eventually, the employee was fired for refusing to apologize. I got the loan ... and a part-time job processing student applications.

Another case: I got a contract to install new hardware and rewire a smallish data center (swapping out everything for Gig-E connectivity). As usual, when the time came to actually do the work, I took my fieldhands and foreman along. These guys are all ethnically Mexican, have been with me for years, and I think the world of them. As we entered the Lobby, the owner of the company greeted us and shook my hand and exclaimed "I can see you have enough muscle power for the dumb, heavy work!" My foreman looked him right in the eye and said "It might get heavy, but it isn't dumb. Consider the fact that we are here to do a fairly simple job that apparently nobody in your organization knows how to do." I snickered. The owner slinked off, red faced.

The foreman is an Hispanic native Californian; his several-greats grandparents settled here before California existed ... He has an uncanny resemblance to surviving pictures of Pancho Villa, including mustache. He also has degrees in Ranch Management and Mechanical Engineering.

Word spread of the short-but-sweet telling off, it would seem the Hispanic security guard at the front desk had overheard ... during the install, the security staff kept us fed & watered, and every time I made eye contact with my foreman I had a bit of a laugh. I gave the foreman my cut of that job ... and found out later that he in turn passed it along to the other four guys. They probably sent it back home to their Mom in the Yucatan. (They are brothers, two sets of twins, a couple years apart, and work together almost telepathically. I am extremely lucky to have them as friends, never mind as employees.)

We all bleed red, people, and we all share DNA and Mitochondrial DNA. We are ALL related ... Treat Humans as Humans, and the other Humans will respond accordingly.

[Anonymous Coward]

@jake

I understand about the theory about mocking, and yes, let them talk, but don't extend rights and freedoms extra to the law to them which is what seems to be being asked for. I think that the mocking can have unintended consequences and allowing people who consider themselfs to be "oppressed others" (ironic, as they are usually working class white men) to band together against the "evil liberals" and their like and actually end up stronger.

I understand your point about hidden racism, ie racism against those not percieved to be of a different race, but I think this is a separate matter - a horrible separate matter that needs to be confronted. I've never really experienced racism, the only time I've come close is to be called a "white bastard" by a couple of asian teenaged boys who passed me in the street. They were clearly just being obnoxious teenagers rather than actually racist, I objected more that they didn't recognise the Anti Nazi League badge I was wearing than that comment itself...

[jake]

@Fraser

"I understand about the theory about mocking, and yes, let them talk, but don't extend rights and freedoms extra to the law to them which is what seems to be being asked for."

I'm a left-pondian. Our rules/laws are a trifle different. There is no need to make an extension to the law when it comes to freedom of speech, because that freedom is nearly absolute in this country. As it should be everywhere, at least in my opinion. Me, I treat people as people, and for the most part I get along with pretty much everybody.

"I've never really experienced racism"

I have. I was a Yank in Yorkshire during my highschool years. If you haven't been there, you have absolutely no idea how obnoxious teenagers can get ... I got me Os & As anyway ;-)

[Semihere]

Scary precedent

Whilst I don't agree with racists, in fact, they're just ignorant idiots without exception, I don't believe the outcome of this case is anything other than bad for the freedom of speech in the UK.

Could the court PROVE that the material was posted from within England or Wales? Did they have IP addresses that material was posted from? Could they prove that individuals were running computers on those IP addresses to post the material. I'm sorry, but to me it all looks like speculation and circumstantial evidence assuming that an IP given out by an ISP equates to the bill payer.

What this demonstrates is the growing importance of anonymising yourself with VPN access. If they can't already prove your link to an IP address (which of course they can't), then they'll never pin an randomised IP to you when you're behind a VPN.

[Throatwobbler Mangrove]

hold on a minute, son

1)

I'm not a big fan of how the headline and first sentence of this article were written - the point is that English courts MAY have jurisdiction to hear prosecutions over racist material IF there is a substantial connection to England EVEN IF the content is hosted in the US.

2)

"Could the court PROVE that the material was posted from within England or Wales? "

The Court disnae prove anything, sonny. That's the prosecution's job. And if the prosecution failed to substantiate their claims of a significant connection to England. then we can only assume the defence were all over it. I don't know - I didn't read the transcript or see the evidence.

3) The comparison to McKinnon is misplaced in some respects (although I believe, from what I know, that his prosecution is not in the UK or US public interest): the court is not claiming that E&W has *exclusive* jurisdiction over the offence, just that it has jurisdiction. If hosting the material in the US were an offence (I understand it's not), then they would also be liable to prosecution in the US *as well*.

[Richard IV]

Probably another irrelevant comparison

It would be interesting to see the substantial measure test applied over in libel land to stop the tourists...

[JohnG]

Country of origin

Whilst the website(s) concerned in this case might have been unpleasant, this ruling seems a bit questionable. For broadcast media, the EU suggests that jurisdiction lies in the country of origin.

Based on the precedent in this ruling, would the UK be OK with the idea that servers in the UK used by Chinese or Burmese dissidents should fall under the jurisdiction of the Chinese and Burmese governments?

[Jamie Jones]

@ you up there ^^^

"Based on the precedent in this ruling, would the UK be OK with the idea that servers in the UK used by Chinese or Burmese dissidents should fall under the jurisdiction of the Chinese and Burmese governments?"

That's a wrong analogy. The correct one would be "would the UK be OK with the idea that Chinese or Burmese dissidents who post on servers in the UK, would be accountable to Chinese Law"

Well, in the case of China, probably not :-)

But the point is, this is nothing to do with taking jurisdiction from America, it's simply saying that they are still accountable under British law

[Anonymous Coward]

Offence without reading.

"the offences of displaying, distributing or publishing racially inflammatory written material do not require proof that anybody actually read or heard the material."

And quite rightly so, in my opinion, because if reading or hearing was required, the police would have to let the material get distributed in order to prosecute the individuals responsible. If the police arrest bank robbers before they leave the bank, they're still done with armed robbery, aren't they?

[Noodle]

Alert

Sane ruling in legal verdict! Courts in sensible ruling shocker!

[bygjohn]

So what about McKinnon, then?

His "activity" took place in the UK, so why wasn't he tried here instead of the government/CPS deciding to throw him to the wolves across the pond?

[Subban]

Is someone going to tell McKinnock ?

"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."

[Jason Bloomberg]

Bravo

An entirely sound judgement which does nothing more than stop people writing whatever they will and claiming to be beyond the law.

It is at least consistent that there is no protection whether anyone agrees with what's written or not, whether believing it should be immune from prosecution or not. It takes moral relativism out of the equation, at least in terms of case to answer.

Perhaps the next test case will be of UK citizens travelling to a foreign land to publish on a foreign-hosted site, as that's the option such people who seek to publish with impunity will undoubtedly be thinking of now.

[Realisticlee]

So if they're saying:

"that the Crown Court had jurisdiction to try the appellants for their conduct because a substantial measure of the activities constituting the 'crime' [my emphasis] took place in England," it won't be necessary to extradite Gary McKinnon after all then? Like the folk in this report, either he did stuff here or he did stuff there (or he's the biggest quantum entanglement demonstration ever, in which case why faff about with UFOs when there's much cooler stuff looking at you in the mirror) but the courts really need to decide once and for all which way the law works.

[Jimbo 6]

UK courts in 'common sense' shocker !!!

Judge : So you’ve ‘phished’ credit card details and looted people’s bank accounts, but you’re saying that although you live in England, your victims all live in England, and you spent the money in England, that doesn’t count because you sent your spam from a Tuvalu email account ?

Spammer : S’right.

Judge : Get to f**k.

(I am of course paraphrasing the Judge's response.)

[Martin Nicholls]

A Book.

The book analogy seems off to me.

Surely the test should be - if you wrote an news article for a California newspaper from within the UK with the same content, sent it by snail mail and it was published in Cali - would that be under UK jurisdiction.

If the answer is yes have at it, if the answer is it's Cali's legal system's problem then it should be the same for content on the internet.

[Anthony Mark]

Re: A Book

Only if the Californian newspaper is also distributed in the UK and the article is clearly intended for UK based readers.

[Anonymous Coward]

So...

Someone sat in the uk, involved in an 'illegal activity' on a server in the US gets tried in the UK do they? Funny, I'm sure I've heard the opposite...

[Simon B]

Common sense in the UK OMG!

OMG my country managed to get something RIGHT for a change! Well done!!! Too many criminals get away with things because of our crap laws and human rights to do anything no matter how much of a twat you are.

[Eddy Ito]

Just wondering

Can we have a poll showing all those in favor of this ruling in the UK and against the US version which is about internationally hosted online gambling instead of racism?

The internet is little different from your TV in that if you don't like what's on it, change the channel or turn it off. There is no need to go running to government crying for help. That said, freedom of speech goes just as far as freedom to be popped in the mouth and there is a line somewhere as it approaches falsely calling 'fire' in a crowded theater or inciting a riot.

[Rasczak]

@ MacKinnon comparisons

IANAL however it seems to me that those comparing this to the MacKinnon case seem to have things the wrong way round. The judgement means that if you base the crime in England, and export some of it overseas, then you can't avoid the jurisdiction of the English courts, on top of any other jurisdictions involved.

In the case for this story, if the content was illegal in the US as well, then this judgement does nothing to stop the US attempting to try them as well.

The only relevance this has to the MacKinnon case is it means that he 'could', should the courts wish, be tried here for the alleged offences as well as the US wanting to try him there.

[Steven Jones]

It's the autors, not the material...

"material published online, even if it is hosted on a server in another country"

Nope - the law in the UK has no control over the material. It is the authors of the material and those who uploaded it that have been targetted. If this material had been put online by citizens of another country then it would not have fallen within the remit of UK law.

Now this material is online the court has no jurisdiction over having it removed apart from any sanctions they might have over the individuals who posted it.

[Steven Jones]

@Martin Nicholls

All analogies fail at some point, but this is not the same as a paper publication made in California only available to Californians (the law may still apply of course, but that's not the point). The proper analogy would be a Californian newspaper with such material being freely available in the UK without the UK authorities having the ability to block its publication.

Of course that's an unlikely scenario, but maybe something like free newspapers distributed on an airline flight to the UK would count.

I would emphasise that the issue of the conflict between freedom of expression and the role that law should play is a different thing. I would draw the line at open incitement of violence. Sadly I have to invoke Godwin's law here and say that much of the Nazi parties activities prior to their coming to power would certainly have fallen under the incitement to violence heading.

[Anonymous Coward]

No freedom

Dont say anything, MI5 is watching and the Govt will just get its friends to sort you out........ terrible country we live in.

[Steve Roper]

Welcome to Australia

We've had this law in place since the 90s - that publication of content by an Australian resident is subject to Australian laws, even if the content is hosted or published overseas. And it's not only on the Internet either; if I went to the Philippines, wrote a book while there that was perfectly legal there but illegal in Australia - I could still be arrested and tried under Australian law upon my return to Australia because I'm an Australian citizen.

That means if I were to post any X-rated porn, including stuff ranging from basic porn like cumshots and upskirts to hardcore stuff like bestiality or sexual activity by people who merely *appear* to be under 18 even though they're not, even if I post it on an overseas server like 4chan, I can be done for publishing lewd and licentious material. Great isn't it?

And now you in the UK have finally caught up, 12 years after our government established this principle. We're still ahead of you losers in the police state stakes though, what with our internet censorship and arresting people for emailing Simpsons porn and all.

[Anonymous Coward]

@Steve

Do you think that you should be able to circumvent your local laws by publishing material that the state deems unacceptable overseas?

I understand that you may disagree with what your state deems unacceptable, but surely that should be what you have the problem with, not the fact that things which are illigal onshore are also illigal offshore?

[Steve Roper]

@Fraser

Oh yes, I have a big problem with what the Australian government deems acceptable - women with small tits and dirty Simpsons cartoons not least - but that's a whole different basket of cats. In this case, I also have a problem with the absolutism of the powers of enforcement - of which prosecuting me for publishing something in another country is one end of the spectrum, and internet censorship is the other.

I have a saying: "The people's respect for the law is only as good as the law's respect for the people." Right now, the law in Australia has very little respect for the people, so I have very little respect for the law. So when I flip the bird to the law, I object to having my circumvention loopholes closed because it means I'm spending more time developing other means of circumvention rather than just getting on with the business of flouting the law.

Like our internet censorship regime; I fully intend to circumvent it if it goes through, but then the next thing will be to crack down on circumvention methods, which means I'll end up spending more time fucking around with circumvention software than I will surfing sites the government doesn't want me to see. Am I wrong for getting pissed off at the government for making my job of defying oppression and tyranny harder, *in addition to* being pissed off at them for being tyrannical arseholes in the first place?

[corestore]

If a racist rants in a forest....

... and no-one is around to hear it, have they committed any offence?

"the offences of displaying, distributing or publishing racially inflammatory written material do not require proof that anybody actually read or heard the material."

On this perverse ruling, it would appear that they do. Proving it would be trivial; all it needs is a police officer to stand up in court and say 'yes I looked at the website and this is what it said..'. So why stretch the point with this ludicrous ruling?

[Anonymous Coward]

not unless some heard you and reported you

"If a racist rants in a forest....

... and no-one is around to hear it, have they committed any offence?"

do you have an idea home many offenses a normal person make in a single day but never get charged for it because:

1- no one (including the person him/herself) knew it was an offense,

2- no one knew that it happened (happened somewhere private)

3- the ones who knew about it never reported it (filled it for blackmail or agreed with it or didn't know it was an offense).

and list goes on.

the problem is.... when someone *DOES* know about and report it... that is when it will go to court.

[Nexox Enigma]

Hmmm...

It seems to me that a huge amount of content on the internet is defamatory, offensive, disgusting, etc - racist material is just the beginning really. I always kind of accepted that there were a large amount of stupid people on the internet (remember when that was just AOL's fault?) and that they would do stupid things, which includes publishing (as long as the publishing was easy - thanks blogs!) stupid shit.

Seems like the UK legal system may have just tried to regulate stupidity on the internet, which is always a losing battle...

[YARR]

The truth comes first

If a so-called "racist" (if there is even a universal, legally sound definition of that word) makes a public statement which is true but qualifies as "racist", should we be concerned that the truth is being suppressed? Which matters more, truth or Political "Correctness" (oxymoron)?

Personally, I doubt just how "racist" this content was, but must reserve judgment until I see it - which I cannot do without breaking the law. Based on the other material they published, the accused are clearly intelligent men and I find it hard to believe that they would intentionally break the law in this regard unless they were seeking publicity.

IMO any laws which limit freedom of speech must have strict definitions to limit their encroachment on our liberties, allowing no room for interpretation. We should be free to make statements which may be interpreted as offensive, provided we don't instruct others to commit illegal acts.

[Steve Roper]

Almost agree with you...

Your first two paragraphs - yes, I'm with you right there. But your last statement - "We should be free to make statements which may be interpreted as offensive, provided we don't instruct others to commit illegal acts." - is an example of allowing quite a lot of room for interpretation. For example: If my government passes its internet censorship law, then my showing a fellow Aussie how to circumvent said censorship falls under your remit of "instructing others in illegal acts". If you are going to put limits on free speech, you need to be VERY specific, like this:

1. No person shall make, produce, distribute or cause to be made, produced or distributed any PHOTOGRAPH of persons whose actual biological age is less than sixteen years, in which photographs said persons are engaging in explicit sexual activity of any kind.

2. No person shall instruct or provide instructions to the general public for the purpose of enabling non-qualified members of the general public to manufacture and utilise explosive, disease or toxic chemical dispersal substances and/or devices with the intention of causing harm to other members of the general public.

See what I mean? When you make these restrictions, you need to make them that specific. Anything less specific than this, such as your "illegal acts", is the thin end of a very nasty wedge.

[oddjobz]

Without viewing the material in question ...

It does seem a little ironic that people can be prosecuted for writing something on the Internet that might offend a class of people labelled "a minority" when so much by the way of erroneous content, blatant lies and personal attacks go unchecked.

Personally I find it offensive every time I hear a politician claim we have "freedom of speech" when we clearly do not. There may be a lot of flexibility with regards to what we can say and get away with, but this is a long way from freedom .. maybe people don't actually want freedom of speech? This is effectively the argument for our current situation. I'd be interested to see the results of a poll here to that effect.

One day I believe we'll get a politician who will actually tell the truth and admit that we don't have freedom of speech and probably never will. What I hope is that one day we'll get a politician who promise to give us freedom of speech AND deliver on that promise - maybe then it'll be worth voting again.

I know the earth is round, but I don't want to live in fear of being prosecuted for saying something that might imply I think it's flat ... and if someone else says it's flat, I'd rather try to show them they're wrong than lock them up.

[Anonymous Coward]

Unbelievable

Every now and then I read or hear something like this story, and I have to pinch myself to be sure I'm awake and not dreaming. Yes, I live in a time when citizens of Great Britain can be sent to prison for expressing their opinions in writing.

All those years of supposedly battling against totalitarianism, yet we have learned entirely the wrong lesson. Apparently we agree with the totalitarians that it is fine to suppress unwelcome opinions - we just disagree about which opinions are unwelcome.

Germany and Austria, with their anti-Nazi legislation, provide a fine example. In the 1930, it was compulsory to praise the Nazis and condemn the Jews. Today, the situation has simply been reversed: it is compulsory to praise the Jews and condemn the Nazis.

I don't suppose my views about those specific groups of people are much different from the average; in particular, I am very much against Nazism and all behaviour that resembles it. But I think that freedom of expression is one and indivisible. The day we accepted the principle that some things cannot be said, on pain of imprisonment or worse, we gave up our freedom of expression. Now we are only free to say whatever we wish, as long as it is acceptable to the government, the public, and the whole vast gamut of pressure groups.

[Anonymous Coward]

@Tom Welsh

Absolutely. I wholeheartedly agree.

Someone needs to publicly ask Cameron what he will be doing to restore freedom of speech in this country.

Unfortunately, as he will be pandering to the Daily Fail readers, I don't expect a response any time soon.

After all, the definition of terrorist these days is anyone who opposes the State...

[Anonymous Coward]

Anyone seeing double standards .....

Just look at the responses from the commentards on this article and responses on this one :

http://www.theregister.co.uk/2010/02/11/florida_obscenity/

The general sentiments seem to be.

UK Judge applying UK law on US interwebs is good.

US Judge applying one State's law on another State's interwebs is bad.

Is it legal double standards or more 'porn good, racist bad' ?

[Steve Roper]

Porn good, racist bad

It's called political correctness. Unfortunately too many of the commentards here seem to suffer from it.