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LEGAL ISSUES RELATING TO THE DEVELOPMENT AND USE OF WORLD WIDE WEB TECHNOLOGY AT EDUCATIONAL SITES

Criminal Liability

What should or should not be published, what is or is not obscene, and what the general public have or do not have the right to know, are naturally divisive issues. Thus, it is no surprise that the development of the WWW has led to sweeping statements by ill-informed media pundits about the absolute freedom of speech, and freedom from censorship, in cyberspace. It is true that the Internet in general, and the WWW in particular, has made it easy for individuals to publish material in a manner hitherto unprecedented. It is also true that the criminal law and those who enforce it have taken some time to come to terms with the implications of that change. However, from the increasing number of Internet related criminal prosecutions, in the UK and abroad, it would seem that the initial inertia has ended The actual degree and nature of computer crime, particularly as it affects the WWW, is extremely difficult to gauge. It would appear from surveys in the area of computer crime/misuse(73) that while computer crime is clearly on the increase, the majority of it is committed by individuals against their employers in a business environment.

As far as the WWW is concerned, the issue of crime and criminal liability has so far played a fairly low key role. What might be described as webcrime can be fairly readily divided into three aspects. The first of these, with regard to webserver and webpage owners, is the provision of illegal material for display or downloading via a webpage or link from a web page. The second, with regard to those browsing the Web, is the display or downloading of illegal material via a webpage or link from a web page. Finally, there is the issue of hacking: i.e. illegal access to a webserver, the unauthorised altering or deleting of parts of a webserver, or the illegal interception of communications resulting from the use of a feature of a webpage e.g. the interception of credit card numbers collected by the use of the forms function.

Pornography

The most obvious (at least it seems to journalists) crime that might be carried out via the Web is the distribution/downloading of computer pornography. This may be covered by a number of provisions covered including the Telecommunications Act 1984(74) the Obscene Publications Act 1959(75), and with regard to child pornography, new legislation in the form of s84-87 of the Criminal Justice and Public Order Act 1994(76). The relevant provisions of this Act, which amend other legislation, including the Protection of Children Act 1978, are aimed specifically at computer generated and distributed pornography. That having been said, even when one takes the media hype into account(77) in the period 1991-1993 of the 976 obscenity cases handled by the Crown prosecution Service, only 11 involved computer pornography and only 7 of those went to court(78).

That having been said, the WWW was only in its infancy in 1993, and it appears that its development, combined with the increasing availability of Internet services outside the academic sphere, has led to an increase in both webservers containing pornography and those with web browsers who wish to access it. Examination of sites containing pornographic material, appears to show that they fall into two main categories;

those run by individuals which contain small personal collections of pornography, accessible at no charge,
commercial websites which contain large amounts of pornography but which charge for access to all but a very small amount of it(79).

Of these two categories, it is the latter that appears to be the major area of growth. Those in the former category are usually individuals who are at universities, or who have Internet access via their employer, or via an Internet service provider (ISP). In general, most WWW sites, particularly those based at academic institutions, are keen to avoid any problems with hard or soft core pornography, and a great deal of control can be exercised by peer pressure from other institutions without the aid of the law, even where the law of the country involved does not forbid such material. For instance, WWW servers at the University of Delft (hard & soft core) and the Conservatoire National des Arts et Metiers (CNAM) (soft core), which carried pornographic pictures that had been downloaded by automatic newsfeed from Usenet groups(80), have both been forced to remove the offending material due to pressure from their governing bodies(81). The situation in the US has tended to be more problematic in this regard due to the First Amendment issues involved(82).

Computer Misuse

Pornography, whilst the most hyped by the media, is not the only form of information publication which may result in criminal liability. It has been suggested that publishing material that might be used in order to breach computer security, or to facilitate unauthorised entry into computer systems, will be caught by those provisions of the Computer Misuse Act 1990 that deal with the issue of conspiracy to commit an offence under the Act. This is supported by the recent conviction of Christopher Pile (a.k.a. "The Black Baron") who admitted 11 charges under the Computer Misuse Act 1990 with regard to writing and distributing computer viruses, and one charge of inciting others to spread computer viruses(83). It is unclear how far this could be extended to other potentially undesirable types of information, such as bomb making manuals. Equally, there is as yet no indication as to the likely liability of an institution that carries hacker-related newsgroups such as alt.2600 on its Usenet newsfeed, thus potentially disseminating material which could allow others to access computer and telecommunications systems without authorisation.

The unauthorised access and alteration of webservers or webpages, and the interception of information collected by WWW mechanisms, would both appear to be covered by existing criminal law(84). In such cases, any institution which plays unwitting host to a hacker is unlikely to be held liable for his actions, particularly where precautions have been taken to both minimise unauthorised user access, and to inform legitimate users of their responsibilities. By way of example, most universities, which were once easy access points to the Internet for would-be hackers because of their open access ethos, have taken action to severely restrict or deny guest user access to their systems, and made it very clear to bona fide users that where unauthorised access to other computer systems from a university system is discovered, it will be both investigated and punished..

Racial Hatred

It has been suggested that certain sections of the Public Order Act 1986(85) may also be relevant to any discussion of criminal liability on the Internet. Sections of that Act that are concerned with racial hatred state that an individual who publishes or distributes written material which is abusive, threatening or insulting to the public, or to a section of the public, or who has such material intending it to be displayed published or distributed, will be guilty of an offence if that person intends to stir up racial hatred, or if, in the circumstances racial hatred is likely to be stirred up(86). Racial hatred is defined as hatred of any group of persons in the UK, whether they are defined by reference to their colour, their race, their nationality, their citizenship or their ethnic or national origins(87). The provisions appear, on their face, to be applicable to webpages that are overtly racist. It is also possible that a webpage which is not expressly racist, but which has links to other webpages that are, may be covered by the Act. In that case, as with libel, the important issue would be proving whether the owner of the linking webpage knew that the material linked to was "threatening, abusive or insulting". However, the issue remains theoretical, as at present, relatively little use appears to have been made of this law in electronic, or indeed any other, forums.

Contempt of Court

In England(88), a distinction is drawn between "civil" and "criminal" contempts. Civil contempt relates to circumstances where parties breach an order of court made in civil proceedings, for example injunctions or undertakings, and as such are not relevant here. Criminal contempt deals with various types of conduct which if allowed to go unchecked, would have the effect of interfering with the administration of justice, and is designed to have a punitive and deterrent effect(89). Criminal contempts essentially fall into five categories:

Publications prejudicial to a fair criminal trial
Publications prejudicial to fair civil proceedings
Publications interfering with the course of justice as a continuing process
Contempt in the face of the court
Acts which interfere with the course of justice.

While the law of the contempt of court was developed by the judiciary through the common law, it has been modified to some extent by the Contempt of Court Act 1981(90) which makes it an offence of strict liability to publish a

"...publication [which] includes any speech writing, broadcast, cable programme or other communication in whatever form, which is addressed to the public at large, or any section of the public(91)"

where such a publication

"... creates a substantial risk that the course of justice in the proceedings in question will be seriously impeded or prejudiced.(92)"

The fact that it is a "strict liability" offence means that an offence occurs even where the person making the publication did not intend to interfere with the course of justice. The broad definition of "publication" would cover USENET messages, e-mail messages sent to mailing lists and WWW pages. The publication of material relating to a case will only be an offence, where it occurs when the case is still sub judice. The statutory "strict liability" rule is only applied during the period that the case is "active" and the definition of "active" is laid down in the Act. However, where an individual knows or has good reason to believe that proceedings are imminent, and publishes material which is likely or calculated to impede or prejudice the course of justice before the point laid down in the Act as the time when the case is "active" this may be a common law contempt.

Actions which would commonly draw charges of contempt include:

Publication of material which prejudges the case, especially where it makes the express or tacit assumption that the accused in a criminal trial is guilty(93).
Publication of material which is emotive or disparaging, especially where there is an insinuation of complicity or guilt by association
Publication of material which is likely to be inadmissible at trial, such as previous convictions, or mention of evidence likely to be excluded as having been improperly obtained(94).
Publication of material such as a photograph of the defendant, where the issue of identification forms part of the trial proceedings.
Publication of material hostile or abusive towards potential witnesses with the intention of coercing them into not testifying, or disclosure of witnesses' names following a court order that their names should not be disclosed if there was a danger that lack of anonymity would prevent them from coming forward(95).
Publication of jury deliberations
Publication of material breaching reporting restrictions in cases such where in open court there is identification of children involved in the proceedings, or identification of rape victims(96).
Publications of material relating to court proceedings closed to the public, including where there is an issue of national security.

Defences to the "strict liability" offence:

A person is not guilty of contempt of court under the strict liability rule as the publisher of any matter to which that rule applies if at the time of publication (having taken all reasonable care) he does not know and has no reason to suspect that the relevant proceedings are active(97).
A person is not guilty of contempt of court under the strict liability rule as the distributor of a publication containing any such matter if at the time of publication (having taken all reasonable care) he does not know that it contains such matter and has no reason to suspect that it is likely to do so(98).
A person is not guilty of contempt of court under the strict liability rule in respect of a fair and accurate report of legal proceedings held in public, published contemporaneously and in good faith(99).

The enforcement of the law of contempt has been rendered more difficult in modern times, by the ability of individuals to publish material, in both traditional(100) and digital media(101), in countries outside the court's jurisdiction. The Internet has in many ways exacerbated this situation. It has been suggested with regard to the Internet, that where the court cannot bring contempt proceedings against the original publisher, it may seek to do so against the Internet Service provider which distributed the material within the court's jurisdiction. Such an approach would, however, potentially create similar problems to those found in libel cases, where Internet Service Providers have argued that the sheer volume of e-mail traffic, or the vast number of WWW pages on their systems make it impossible to check them all for possible libellous statements. As with libel, the courts are likely to treat rather more favourably (with regard to punitive measures) those ISPs and website owners who, once notified that material likely to constitute the basis for a contempt offence, is held on their systems, do everything in their power to remove it as rapidly as possible.

73 For example Opportunity Makes a Thief: An Analysis of Computer Abuse, the fifth triannual report of the Audit Commission on the extent of computer abuse and fraud in the UK (1994, HMSO Publications).

74 See Appendix XX

75 Not applicable in Scotland.

76 See s172 (8) for those parts of the Act applicable to Scotland.

77 And there seems to be no end to the number of articles like the one run by The Guardian, 24 August 1994 somewhat unoriginally entitled 'Computer going down' which noted that a University of Wales computer was put out of action for two days due to an overload caused by a student downloading pornography from the US.

78 'Industry focuses on cleaning up its act' The Guardian 27 September 1994 at 8.

79 Such as http://www.playboy.com and http://www.penthouse.com.

80 e.g. alt.binaries.pictures.erotica and alt.binaries.pictures.blondes

81 And, it must be said, apparently due to massive overloads on the machines concerned as individuals attempted to access the pictures.

82 Although there have been interesting developments with regard to 'jurisdiction hopping' by law enforcement agencies, see a recent US case reported last year (28 July 1994) on the cyberia-l mailing list
"Jury Convicts Couple in Computer-Porn Trial" MEMPHIS, Tenn. (AP) -- A federal jury convicted a California couple today of transmitting obscene pictures over a computer bulletin board. The case has raised questions, in this age of international computer networks, about a 1973 Supreme Court ruling that defines obscenity by local community standards. Prosecutor Dan Newsom, an assistant U.S. attorney, said the trial was the first he knows of for computer bulletin board operators charged under federal law with transmitting pornography featuring sex by adults. Robert and Carleen Thomas, both 38, of Milpitas, Calif., were convicted of transmitting sexually obscene pictures through interstate phone lines via their members-only Amateur Action Bulletin Board System. The Thomases were convicted on 11 criminal counts, each carrying maximum sentences of five years in prison and $250,000 in fines. Thomas was acquitted on a charge of accepting child pornography mailed to him by an undercover postal inspector. The Thomases refused to comment after the verdict. They remain free on $20,000 bond to await sentencing, for which no date was set. Defense lawyer Richard Williams said his clients will appeal, arguing the jury was wrongly instructed on how to apply the Supreme Court's standard on obscenity. The trial raised questions of how to apply First Amendment free-speech protections to "cyberspace," the emerging community of millions of Americans who use computes and modems to share pictures and words on every imaginable topic. Williams argued unsuccessfully before trial that prosecutors sought out a city for the trial where a conservative jury might be found. "This case would never have gone to trial in California," he said. During the week-long trial jurors were shown photographs carried over the Thomases bulletin board featuring scenes of bestiality and other sexual fetishes. Their conviction also covers videotapes they sent to Memphis via United Parcel Service. The videotapes were advertised over the bulletin board.

83 (Unreported). He received an 18 month jail sentence for those activities in November 1995.

84 Particularly s1-3 of the Computer Misuse Act 1990, and the Interception of Communications Act 1985

85 See s42 for those sections of the Act applicable to Scotland.

86 See The Public Order Act 1986 s18-19, 23.

87 Ibid. s17

88 But not in Scotland.

89 See Bailey, S.H., Harris, D.J. & Jones B.L. Civil Liberties: Cases and Materials 3rd ed. Butterworths 1991 - Chapter 6, Freedom of Expression: contempt of court & Smith, G. (ed.) Internet Law and Regulation FT Law and Tax 1996 .

90 However the CCA 1981 does not codify or replace entirely the common law. It does however apply to Scotland (s15).

91 S2 (1) CCA 1981.

92 S2 (2) CCA 1981.

93 See A-G v TVS Television (1989) The Times 7 July, (DC).

94 See S-G v Henry [1990] COD 307.

95 See R v Socialist Worker Printers and Publishers Ltd, Ex parte A-G [1975] QB 637 (DC).

96 See Pickering v Liverpool Daily Post and Echo Newspapers plc [1991] 1 All ER 622 (HL).

97 S3 (1) CCA 1981

98 S3 (2) CCA 1981

99 S4 (1) CCA 1981

100 Consider, for instance, the Spycatcher saga, where the book in question was freely available outside the UK, but could not be published or excerpted in the UK.

101 A good example of this concerns the trials in Ontario, Canada, of Karla Homolka and Paul Bernado. During the trial of Karla Homolka for the murders of two teenaged girls, Kristen French and Leslie Muhaffy, the court ordered a publication ban on reports of the trial in Ontario, in order to ensure a fair trial for her husband Paul Bernado (a.k.a. Paul Teale), also charged with the murders (See Action No. 125/93, [R. v. Bernardo], [1993] O.J. No. 2047. Despite the ban, information was widely available, due to coverage by US newspapers, cable and TV stations, and at least one Website based at a US University. A UseNet newsgroup set up to disseminate and discuss information about the trial, alt.fan.karla-homolka was censored by many Canadian Universities.

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