UK Bans Porn Made in the USA

Case Name:
R v GRAHAM WADDON (1999)

Court:
Southwark Crown Court (HH Judge Hardy) 30/6/99

Subject:
CRIME - INFORMATION TECHNOLOGY - MEDIA AND ENTERTAINMENT

Descriptors:
INTERNET : OBSCENE PUBLICATIONS : JURISDICTION : PUBLICATION ABROAD : S.69
POLICE AND CRIMINAL EVIDENCE ACT 1984 : CERTIFICATE : TRANSMITTING DATA : IMAGES : COMPUTERS

Summary:
When an image had been transmitted across the Internet the act of publication took place when the data was transmitted by the defendant or his agent to the service provider, and the publication or transmission was in effect still taking place when the data was received. The computers involved in the transmission of the data were mere post boxes, therefore the only certificate that the prosecution needed to provide was from the computer from which the image had been obtained.


Text:
The defendant was charged with numerous counts of publishing obscene articles contrary to s.2(1) Obscene Publications Act 1959. The defendant had created images and put them on his computer, transferred them via an internet service provider to a number of websites. The images were accessible to anyone in the world via the Internet by giving of credit card details and becoming a subscriber. The subscriber was given a password and could log onto the various websites to obtain the images. It was submitted on behalf of the defendant firstly that, because of the nature of the Internet publication had necessarily occurred abroad and therefore the instant court did not have jurisdiction. Secondly it was submitted that s.69 Police and Criminal Evidence Act 1984 ('PACE') had not been complied with. Section 69 required positive evidence that the computer in question had properly processed, stored and reproduced whatever information it received and that to make sense of the section and the purpose for which it was passed - namely to ensure that there had not been any computer malfunction - certficates should have been provided for all the computers involved in the process (see R v Cochran (1993) Crim LR 48). It was argued that despite the fact that technology had moved on since the drafting of the 1984 Act, s.69 had to be strictly applied. Without certificates that there had been no computer malfunction for all the computers involved in the process of transmission through which the data had passed across the Internet, there was no admissible evidence of publication. The prosecution submitted however, that s.69 did not require every computer in circumstances such as these to have a certificate but only the computer producing the document in question. Attention was drawn to Sch.3, Part 11 of the 1984 Act which stated that in estimating the weight to be attached to a statement generated by a computer regard should be had to all the circumstances from which any inference could reasonably be drawn as to its accuracy. The only certificate provided by the prosecution was from the computer from which the image had been obtained.


HELD: (1) Publishing an article under s.1(3)(b) of the 1959 Act included data
stored electronically and transmitted. To transmit simply meant to send on
from one place or person to another. In the instant case an act of publication
took place when the data was transmitted by the defendant or his agent to the service provider, and the publication or transmission was in effect still
taking place when the data was received. Both the sending and receiving took place within the jurisdiction of the court and it was irrelevant that the
transmission may have left the jurisdiction in between the sending and receiving. (2) The transmission of the data could have passed through dozens if not hundreds of computers both in and outside the jurisdiction and it was impracticable if not impossible for the prosecution to certificate every computer involved in the transmission of the data. The computers involved in the transmission of the data across the Internet were mere post boxes, and did not alter or directly interfere with the original image provided to the internet service provider.
Therefore the computer producing the document in question needed to be the only certificate provided by the prosecution, and the evidence was admissible.

Finding for the prosecution.