Chris Watson and Bailey Ingram highlight a largely ignored impact of the Divisional Court’s much publicised judgment in Chambers v DPP, namely the ruling on the term ‘public electronic communications network’.
Much has been made of the High Court's decision in Chambers v Director of Public Prosecutions  EWHC 2157 (Admin) that a message posted on Twitter in jest was not to be considered menacing and so a criminal offence under the Communications Act 2003. Worthy of further attention, however, is the Divisional Court's finding that the message was sent over a 'public electronic communications network' and the huge extent of its potential application.
1. 'The Internet' is a public network
The Court made the ground-breaking finding that the Internet itself constitutes a public network. The reasons it gave were two-fold:
· the Internet 'is plainly a public electronic communications network provided for the public and paid for by the public through the various service providers we are all familiar with';
· the 'potential recipients of the message were the public as a whole, consisting of all sections of society'.
The potential scope of this approach is enormous. The first element of the reasoning seems derived from an analysis of the network infrastructure: the infrastructure supporting the Internet as a whole is an inextricable network of networks and services linking individuals, service providers, network providers, platform providers and content providers.
Considering the whole network as a single public electronic communications network draws in networks previously considered 'private' or 'bespoke', unavailable to the public but able to connect with the public. It also implicates the arrangements supporting platforms and applications.
The second element was further elucidated in the judgment:
'Twitter', as we all know is widely used by individuals and organisations to disseminate and receive information. In our judgment, it is inconceivable that grossly offensive, indecent, obscene or menacing messages sent in this way would not be potentially unlawful.
On this reasoning, it is difficult to fathom why a message posted from a hospital, a bank headquarters, or a wifi connection on a commuter train, a priori networks not available to the public, should not be potentially unlawful.
2. The unintended implications of extending the scope of a public electronic communications network
The context of the Twitter judgment was the prosecution of an offence of misuse of a public electronic communications network under the Communications Act 2003, s 127(1)(a). The offence rested on a particular definition of 'network'. The Court was at pains to consider the genesis of the provisions, dating back to the first offence under the Post Office (Amendment) Act 1935. However, the Court in its reasoning entirely disregarded the repeated and far-ranging use of the term 'public electronic communications network' throughout the Communications Act in the context of EU and UK communications regulation. Indeed, the definition of a public electronic communications network is derived from an EU concept developed for the purposes of regulation. Consequently it needs to be interpreted as per Community Law. It is adopted as a single term in the Communications Act, which happens to be invoked for the purpose of the long-standing offence of misuse of a public communications system.
The European Framework for Electronic Communications is designed around the distinction between public and private networks and services; the former attracting substantial regulation which non-public networks escape. First and foremost, public electronic communications networks carry the right and corresponding obligation to negotiate interconnection with other public network providers. The similar term 'Public Communications Network' entails further requirements. Certain obligations are imposed to ensure the availability of the public network, such as taking necessary measures to maintain the proper and effective functioning of the network at all times, and making arrangements for the event of a public disaster. Others are for the protection of consumers, including the obligation to publish quality of service information if instructed to by Ofcom, and offering contracts with specified minimum terms to end-users.
Regulation of public electronic communications networks extends further still into data retention and lawful intercept requirements. The government may require operators of public networks to retain communications data relating to the traffic passing over its network and information about subscribers, to be made available to authorities on request. A public network provider may also be instructed to maintain the capability to intercept communications over its network at the direction of the government.
By describing and defining the Internet as a 'public electronic communications network' for the purposes of the Communications Act because it is ultimately funded by the public and because it facilitates communication with the public as a whole, the judgment appears to implicate inadvertently a wide range of network and service providers within the scope of EU and UK communications law. It leaves open the possibility, for example, that Twitter could be bound by the above regulatory requirements.
In Chambers, the prosecution won on this point, successfully establishing that the message was sent over a public electronic communications network, and the defendant won his case overall. There is no reason to think, therefore, that either side will appeal the Court's finding. It is likely to stand without Twitter or other communications providers having a say in the matter. Further, as a decision of the Divisional Court, it sets a precedent which will not be easy to overturn.
3. Indicative of a trend?
The Government's draft Communications Data Bill dispenses altogether with the distinction between public and private and even the concept of a network. Instead new requirements to acquire and store communications data will apply to operators of every 'telecommunications system' which 'exists (whether wholly or partly in the United Kingdom or elsewhere) for the purpose of facilitating the transmission of communications…' This appears to sit well with the High Court's intuitive interpretation in Chambers of communications systems which fall within the public domain.
New types of networks are in the early stages of development, including those supporting cloud computing and smart metering. Once these might have been considered as distinctly non-public networks, either due to being a bespoke service or as dependent upon a prior contractual relationship with a utility company, for example. Now that the nebulous concept of the Internet is considered a public asset, it is a clearer possibility that these developing networks will be encompassed in the regulatory environment.
The High Court's judgment in Chambers can be read here.
Chris Watson is a Partner, Communications and Regulatory, CMS Cameron McKenna: [email protected]
Bailey Ingram is an Associate, Communications and Regulatory, CMS Cameron McKenna: [email protected]
This is a revised version of an article which first appeared in Law-Now.