Issues of Criminal Liability

The following constitutes the notes and text from the slides from Mark Gould's presentation at Facing the Legal Challenges of Providing Internet Access in HEIs, organised by The JISC with support from UKOLN

Brief biography of Mark Gould.

Introduction

• Obscene Materials/Pornography
• Computer Misuse
• Contempt of Court
• Racial Hatred
• English Law

Session Objectives

• Identify criminal behaviour
• Understand who might be liable
• Know how to react
• Use the knowledge in local policies

Inter-connections

• Freedom of speech
  • Academic freedom
• Social restrictions

Obscene Materials and Pornography

• Viewing or publishing?
• Obscene?
• Indecent?

What is Obscenity?

"an article shall be deemed to be obscene if its effect . . . is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely . . . to read, see or hear the matter contained or embodied in it."

Obscene Publications Act 1959, section 1(1)

Elements of obscenity

• Tendency to deprave and corrupt
• What is the likely audience?
• What is the relevant article or item?

Indecency

• Definition
• Criminalisation
  • Importation
  • Posting
  • Public Displays
• Protection of Children Act 1978

Protection of Children Act 1978

Criminalises

• Distribution
• Possession
• Advertising

Definitions

• Distribution:

  "if he parts with possession of [it] to, or exposes or offers it for acquisition by, another person"

• Pseudo-photograph:

  "an image, whether made by computer graphics or otherwise ..., which appears to be a photograph"

Viewing or Publishing?

• Usenet articles
  • Author
  • Author's institution
  • Third parties
• Web pages
  • Author
  • Author's institution
  • Third parties

Defences

• Obscene Publications
  • Innocent publication (s.2(5))
  • Public good (s.4)
• Indecent Photographs
  • Legitimate reason
  • Lack of knowledge

Computer Misuse Act 1990

1. Unauthorised access to computer material
2. Unauthorised access with intent to commit or facilitate commission of further offences
3. Unauthorised modification of computer material

Contempt of Court

• The sub judice rule
• Interfering with the due course of justice generally
• Responsibility for publication

The sub judice rule

• Strict liability

  "conduct may be regarded as a contempt of court as tending to interfere with the course of justice in particular legal proceedings regardless of intent to do so."

• Substantial risk of serious impediment or prejudice
• Active legal proceedings
  • Contempt of Court Act 1981

Interference with the course of justice

• Common law contempt
  • Intention required
• Scandalising the court
• Jury deliberations

Responsibility

• Innocent publication or distribution
  • Contempt of Court Act, s.3
• Analogy with defamation law
  • Defamation Act 1996, s.1

Racial Hatred

"'Racial hatred' means hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins."

Public Order Act 1986, section 17

Offences

• Display of written material (s.18)
• Publication or distribution of written material (s.19)
• Distribution, showing or playing a recording of visual images (s.21)

Which are threatening, abusive or insulting and are intended to, or are likely to, stir up racial hatred.

Defences

"It is a defence for an accused who is not shown to have intended to stir up racial hatred to prove that he was not aware of the content of the material and did not suspect, and had no reason to suspect, that it was threatening, abusive or insulting."

Practical Issues

• Evidence
  • voluntary preservation
  • search and seizure powers
• Jurisdiction
• UK law
• Laws of other countries

Where to Get More Information

• Other training sessions
• Books, articles, electronic sources
• Consulting services, other sources
• These slides and notes on the web at
  URL:http://aranea.law.bris.ac.uk/JISC/

Facing the Legal Challenges of Providing Internet Access in HEIs
Organised by The JISC with support from UKOLN