Internet Publication: Jurisdiction over Foreign Web Sites

February 5, 2010

The normal context in which we view liability for publication of material on a web site is the civil law. R v Sheppard and Whittle [2010] EWCA Crim 65  approaches the issues in the context of the criminal law. 

The case addressed the question of whether an English court had jurisdiction to try charges of publishing racially inflammatory material contrary to the Public Order Act 1986, s 19(1) where the web site publishing the material was hosted outside the jurisdiction. Moreover, the web site was hosted in California and it was common ground that the material was not unlawful in that jurisdiction. The Court of Appeal determined that there was indeed jurisdiction as a substantial part of what was alleged to have taken place took place within the jurisdiction. 

The lead judgment from Lord Justice Scott Baker summarises (at [19]-[36]) the main arguments and the reasons for dismissing them. The view taken on ‘written material’ is interesting in that it seems to contrast with some interpretations of ‘written form’ in civil contexts. An extract from the judgment is set out below: 

19.   Jurisdiction

  1. The judge found that the test to be applied was to be found in the case of R v Smith (Wallace Duncan) (No.4) [2004] 2Cr App R 17, [2004] EWCA Crim 631. That is 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. He rejected the appellants’ arguments that the determinative factors were (1) that the act of publishing took place in California when the format of the material supplied by Sheppard was converted to allow it to become accessible on the internet, and when it was accessed by other people clicking on the website; (2) that the act complained of did not constitute a criminal offence in the United States of America because it was not only not a criminal act but also specifically protected by the First Amendment to the American Constitution; and (3) that the wording of section 42 of the 1986 Act was different from the jurisdictional wording of, for example, the Theft Act 1968 and thus the Wallace Duncan Smith (No.4) line of authority was not applicable.
  1. The judge said in his ruling that the test to be applied was summed up effectively in a quotation at paragraph 55 of the judgment of Lord Woolf C.J. in Wallace Duncan Smith (No.4) citing Rose L.J. in Smith (No 1):

“The passage in Treacy v DPP to which Roberts CJ refers is the celebrated discussion by Lord Diplock of the bounds of comity and the judgment of La Forest J in Libman contains a most valuable analysis of the English authorities on the justicability of crime in the English courts which ends with the following conclusions:

The English Courts have decisively begun to move away from definitional obsessions and technical formulations aimed at finding a single situs of a crime by locating where the gist of the crime occurred or where it was completed. Rather, they now appear to seek by an examination of relevant policies to apply the English criminal law where a substantial measure of the activities constituting the crime take place in England, and restricts its application in such circumstances solely to cases where it can seriously be argued on a reasonable view that these activities should on the basis of international comity not be dealt with by another country.”

  1. 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 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. Further, the material appearing on the computer user’s screen was exactly or substantially in the same form as it was when it was uploaded by Sheppard. He added that even if the defence were correct that a novus actus occurred in California at the point at which the server was utilised (which the judge said he seriously doubted was the case), use of the server was merely a stage in the transmission of the material requiring no intervention once the website was activated. Any novus actus could only be regarded as that of an agent acting on behalf of Sheppard and thus the act in English law of the principal. It could not, the judge said, be seriously argued on a reasonable view of all the evidence that the appellants’ activities should, on the basis of international comity, be dealt with by another country.
  1. Mr Sandiford, for the Crown, submits that the judge was correct to rule that the “substantial measure “test was satisfied for the following reasons:

o        Sheppard operated and controlled the website from within the jurisdiction;

o        the material was uploaded, maintained and controlled from within the jurisdiction;

o        the material, the subject of counts 4 – 8, was written and edited within the jurisdiction;

o        the material the subject of counts 9 – 15 was collated and selected within the jurisdiction;

o        Sheppard’s website included a dedicated British page (no other country had such a page) on the website and offered books for sale with prices and postage quoted in sterling;

o        Sheppard’s website and Whittle’s column in which the material the subject to counts 4 – 9 was published were linked to websites such as that of the British People’s Party;

o        E-mail traffic between the appellants revealed their intention to publish the material on the website within the jurisdiction and they claimed to have done so in order to satirise political correctness and redress an unbalanced media.

  1. There was in our view abundant material to satisfy the “substantial measure” test. However, Mr Adrian Davies for Sheppard in a submission supported by Mrs Linda Turnbull for Whittle submits that this is not the correct test and that Wallace Duncan Smith (No. 4) is of no assistance in determining the issue of jurisdiction in the present case. Wallace Duncan Smith was convicted of one count of fraudulent trading contrary to section 458 of the Companies Act 1985 and two counts of obtaining property by deception contrary to section 15 of the Theft Act 1968. Smith, a Canadian national, was chairman and managing director of a merchant bank which ceased trading in 1991. It was subsequently wound up owing its unsecured creditors some £92m. It also controlled other companies based in Canada, including Wallace Smith Holdings (WSH). Working from this country and using a group of companies which he controlled, Smith set up various bogus deals between the merchant bank and WSH which boosted the size of the merchant bank’s profits. While the dishonest arrangements were put into operation by Smith in this country, the obtaining of the money took place outside the jurisdiction when the money was paid into a bank account in New York.
  1. The problem faced by the court in Wallace Duncan Smith (No 4) was a conflict between the decisions of this court in Smith (No. 1) [1996] 2 CAR 1 and R v Manning [1999] QB 980. As the Lord Chief Justice observed at paragraph 48, the issue was an important one and involved the extent to which it was appropriate for the court to develop the common law as to jurisdiction in order to meet the changing requirements of society. In the event the court followed Smith (No. 1) and in doing so the Lord Chief Justice cited from the opinion of Lord Griffiths in Liangsiriprasert v Government of United States of America (1991) 92 Cr App R 77,90.

“Unfortunately in this Century crime has ceased to be largely local in origin and effect. Crime is now established on an international scale and the criminal law must face this new reality. Their lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England.”

  1. Lord Woolf went on to point out that Liangsiriprasert was applied in Sansom & ors (1991) 92 Cr App R 115 in a judgment delivered by Taylor LJ. Sansom was another conspiracy case and Lord Woolf could see no distinction in relation to the principles of jurisdiction between conspiracy and obtaining by deception.
  1. We have to consider whether there is any basis for not applying in the present case the “substantial measure” principle for establishing jurisdiction as enunciated by the Lord Chief Justice in Wallace Duncan Smith (No.4). The starting point seems to us to be the terms of the 1986 Act. Mr Sandiford points out that sections 18, 19 and 23 contain a comprehensive scheme to restrict the public dissemination of written material intended or likely to stir up racial hatred. Section 18 covers display of such written material, section 19 publication and distribution and section 23 possession. In the interpretation section of the Act, section 29 “written material” is described as including any sign or any visible representation. 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. 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.
  1. The judge was referred to Hansard. Both the appellants and the Crown sought to rely on it. The appellants argue that Hansard makes clear that no consideration was given, when the Bill was debated, to the internet. The Crown argue that the debate illustrates Parliament’s intention was to ensure that “written material” in Part III of the 1986 Act was wide enough to cover new forms of communication so that racist organisations and others could not advance the type of argument being put forward in the present case.
  1. For our part we think that the meaning of “written material” as interpreted by section 29 is sufficiently clear to cover the present case without recourse to Hansard. The word “includes” in section 29 is plainly intended to widen the scope of the expression. We reject Mrs Turnbull’s submission that the written material has to be in visible, comprehensible form with some degree of permanence. We also reject the submission that any assistance is to be obtained from the Obscene Publications Act 1959 which, as originally drafted, was not wide enough to embrace electronic publication.
  1. Mr Davies draws our attention to the Sexual Offences Act 2003 where Parliament has legislated to criminalise certain categories of conduct regardless of where the offences are committed and whether or not the conduct is illegal in the country in which it is committed. He submits that the absence of any provisions similar to sections 47 – 50 of the Sexual Offences Act 2003 in the 1986 Act in a clear pointer limiting its extent to England and Wales.
  1. Section 42 of the 1986 Act provides that the provisions of the Act extend to England and Wales save for some limited exceptions that mainly relate to Scotland and Northern Ireland. We do not think it assists in taking the present case outside the jurisdiction principle in Wallace Duncan Smith (No 4). We agree with the judge that section 42 is not a restriction of jurisdiction to England and Wales, rather it sets out the limitations imposed by the statute as to its extent within England and Wales. It sets out the extent to which the Act applies within England and Wales. It is not determinative of the jurisdiction of the courts of England and Wales.
  1. The position seems to us to be as follows. The conduct the relevant provisions of the Act seek to prevent is the dissemination of material intended or likely to stir up racial hatred. In the present case under section 19 we are concerned with publication of such material, to which we shall come in a moment. The reality is that, as expressed by the judge, almost everything in this case related to this country. This is where the appellants operated one in Preston, the other in Hull; this is where the material was generated, edited, uploaded and controlled. The material was aimed primarily at the British public. The only “foreign” element was that the website was hosted by a server in Torrance California and, as the judge observed, the use of the server was merely a stage in the transmission of the material.
  1. What is the test for jurisdiction if it is not as set out in Wallace Duncan Smith (No.4)? Mr Davies submitted that there were essentially 3 jurisprudential theories at to publications on the internet. The first is that a publication is only cognisable in the jurisdiction where the web server upon which it is hosted is situated – the country of origin theory. The second is that publication on the internet is cognisable in any jurisdiction in which it can be down-loaded – the country of destination theory. The third is that while a publication is always cognisable in the jurisdiction where the web server upon which it is hosted is situated, it is also cognisable in a jurisdiction at which the publication is targeted – the directing and targeting theory. Since we have come to the clear conclusion that the jurisdiction is governed by the substantial measure principle enunciated by this court in Wallace Duncan Smith (No.4) it is unnecessary for us to explore any of these three theories or the effect of applying them to the facts of this case. It seems to us that the substantial measure test not only accords with the purpose of the relevant provisions of the 1985 Act it also reflects the practicalities of the present case.


  1. Before us Mr Davies put publication at the forefront of his argument submitting that if, as he contended was the case, there was no publication that was the end of the case. His argument is that one cannot have a publication without a publishee (or rather sufficient publishees) to constitute a section of the public as required by section 19 (3) of the 1986 Act. The judge noted that the only direct evidence of there being a publishee was that of the police officer, DC Brown, and that in one sense he was a self-publishee. In our view, however, the 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. This accords with the definition of publish and publication in the Shorter Oxford Dictionary. As Kennedy L.J. put it in R v Perrin [2002] EWCA Crim 747, a case under the Obscene Publications Act 1959, at paragraph 22 “the publication relied on in this case is the making available of preview material to any viewer who may chose to access it …” The material in the present case was available to the public despite the fact that the evidence went no further than establishing that one police constable downloaded it. It is also to be noted that the natural meaning of publication, as applied by the judge gives effect to the two distinct offences under section 19 of publication and distribution of racially inflammatory material. It also fits neatly with the scheme of Part III of the 1986 Act which creates a comprehensive range of offences in respect of racially inflammatory written material namely section 18 – displaying, section 19 – publishing or distributing and section 23 – possession with a view to the material being displayed published distributed etc.
  1. The point that there cannot be publication without a publishee is in our judgment fundamentally misconceived. 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. Nor does criminal libel assist, for reading out socially inflammatory words will amount to an offence under section 18 (1). Further, the offences of displaying, distributing or publishing racially inflammatory written material do not require proof that anybody actually read or heard the material.

Written Material

36. The appellants’ third ground of appeal contends that even if there was publication and the English court has jurisdiction, any publication was not of written material. We have covered most of the appellants’ arguments on this point when dealing with the issue of jurisdiction and explained why in our view the contention is misconceived. For completeness we should say that we are not persuaded by Mr Davies’ eiusdem generis argument which is that “written material” should be limited to something akin to a sign. What section 29 says is that “written material” includes any sign or other visible representation and in our view those words are sufficiently wide to include articles in electronic form.