Letter to the Editor

June 30, 2001

There are a number of significant omissions in AmandaKearsley’s article The Internet,Paedophilia and the ISP (C&L Vol 12 issue 1; April/May 2001) so that theresult is somewhat unbalanced.

1. Charges involving paedophiliac material are nearly always prosecutedunder the Protection of Children Act 1978, not the Obscene Publications Act uponwhich Ms Kearsley concentrates. This applied in the Wonderland case where themajority of the defendants faced a charge of conspiracy to distribute anddespite the fact that some of the images would also probably have been regardedby a jury as obscene. (I was instructed by defence lawyers).

2. One main problem for ISPs is not so much that they may inadvertentlypublish (or distribute, which is the offence under the PCA 1978) but that mere possessionis a strict liability offence under s160 of the Criminal Justice Act 1988. Thedefences have to be proved on the balance of probabilities. Of the defences s160(2)(c) is the one ISPs would typically need to go for: “that the photographwas sent to him without any prior request ¼and that he did not keep it for an unreasonable time”.

3. Thus Godfrey v Demon Internet(in which I was instructed by Dr Godfrey) provides relatively little assistance.That case was interesting (apart from the novelty and the claims of‘principle’ made by both sides) largely because the court decided that whenan ISP provides a news-server he acts as a publisher. Some newsgroups arenotoriously used as a means of exchanging paedophile images – the ISP could becharged with possession. The same could apply to mail-servers (the box on whichyour mail resides after it has arrived at the ISP and before you have picked itup; here the ISP would probably not face a charge of publication (if thematerial is obscene) or distribution (under the PCA 1978) but could face acharge of possession (CJA 1988, s160).

4. A further interesting situation arises where the ISP provides facilitiesfor chat-rooms, of which there are several variants. Typically files, ifexchanged, are not held at the server. However, if the ISP is acting as host hemay attract liability under the PCA as an accessory. A recent publication by theInternet Crime Forum, Chatwise,Streetwise (available from http://www.internetcrimeforum.org.uk/)is worth reading.

5. The main practical defence for the ISP is that prosecutions under the PCArequire the fiat of the DPP; thepractical advantage of participation in the Internet Watch Foundation scheme –as opposed to doing so out of a sense of public duty – is the much greaterlikelihood that refusal of the fiatis prompt.

6. In addition to the hot-lines, other non-law-enforcement approaches to theproblem of the distribution of harmful content on the Internet include thesetting up of consultative for a between ISPs and the police, self-rating ofcontent by Web-publishers, the development of content filtering software (thoughthis is nowhere near as solidly reliable as vendors claim) and various low-costbut effective educational and educational programs. Some of the best activitiesare sponsored by, of all places, the European Commission (http://europa.eu.int/ISPO/iap/).

7. As well as the European E-Commerce Directive (Directive 2000/31/EC of 8June 2000) to which Ms Kearsley refers and which describes the limits of theISP’s ‘mere conduit’ status, ISPs also need to know about the CouncilFramework Decision on combating the sexual exploitation of children and childpornography of January 2001 (COM(2000)854 final/2). This is likely to becomepart of UK law; the aim is for Member States to take the necessary measures tocomply with the Framework Decision not later than 31 December 2002.

8. However the greatest omission in Ms Kearlsey’s piece was failure to sayhow far ISPs may be compelled, sometimes at their own significant expense, toassist law enforcement. This is the territory of the Regulation of InvestigatoryPowers Act 2000. Among the other problems are clashes with data protection andhuman rights legislation. Some of the more difficult Codes of Practice are stillincomplete. The Web site of the Foundation for Information Policy Research(http://www.fipr.org) providesextensive criticism and guidance.