UK Court Says It Has Jurisdiction Over Racist Material Stored On California Server... If Content Created In The UK

from the the-long-fiber-optic-arms-of-the-law dept

Wed, Feb 17th 2010 10:44pm — Mike Masnick

We've had numerous posts lately about jurisdiction questions raised online, and PRK alerts us to a case in the UK where two men were convicted for publishing racist information online. The jurisdictional question came in because the content itself was hosted on servers in California. The court said that UK law still applied because the actual action of creating the content was done by the two men in the UK, and it was then just uploaded to the server elsewhere. While there are serious concerns over "libel tourism" type cases in the UK, in this case I can understand the reasoning behind the ruling. The actions themselves took place in the UK, so it does make sense to try the men there.

Of course, there are some other issues related to the case, including the court saying it didn't matter whether or not anyone in the UK had actually seen the content -- which seems a bit odd. While the content ran afoul of some sort of hate speech laws in the UK, it does seem reasonable to ask whether or not the content itself was ever actually seen by anyone, but the court found otherwise:

"The point that there cannot be publication without a publishee is in our judgment fundamentally misconceived," he said. "It is based on an irrelevant comparison with the law of libel. Libel is a tort or civil wrong where it is necessary for the claimant to prove that the words complained of were published of him and were defamatory of him ... the offences of displaying, distributing or publishing racially inflammatory written material do not require proof that anybody actually read or heard the material."

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Filed Under: california, jurisdiction, uk

29 Comments

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mike allen (profile), 17 Feb 2010 @ 11:57pm

is this
a case of if you can do it we can.
i am thinking of cases where US law has aledgedly been brocken in the UK or by a UK citizen, the US courts claim jurisdiction and even attempt to get our citizens in to the USA for charges. Nice to see it work the other way a few more like this and watch the courts do a Uturn. maybe.
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anti-mike fanclub member #1, 18 Feb 2010 @ 12:00am

If I remotely detonate a cannon located in california, which lobs a round across the world and onto a human target in UK, which is immediately destroyed, then I am guilty of murder. Likewise, if I remotely publish an ideological cannon in the form of an electronic work located in california, which lobs a copy across the world over fiber optics and onto a human target in the UK, which is immediately tainted by the scourge of verboten thoughts, then I am guilty of whatever the hell it is that these guys are probably going to be guilty of. What's the difference, in orwell's england?
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ant anti mike da man, 18 Feb 2010 @ 12:33am

lets try that again
um if i take 5 pounds a dope and i make it all up in the uk and send it to a california post office box
id say im pretty screwed if i travel to the us and try and claim it if they know its there

BUT heres a kicker
in canada our law says that whatever where ever its done on the net were responsible

this is primarily one of them to catch sicko porn weirdies
it does mean if i host a hacker site in the usa they cant do shit to me cause local law does superceed it

aint that special
im a citizen of Canada NOT USA is how the rational goes, thus our laws first , anything else next
kinda can see it protecting me a little if we had a govt that gave a damn.

how this us law will however be used
think caching
think about data being routed its touching there soil so anyway it can touch USA its this law. time to start sending big penis pics through the usa but not to anyone in the usa
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cofiem (profile), 18 Feb 2010 @ 12:59am

While it is of course necessary that people cannot simply write anything they like, this seems really weird.

What if someone writes about their annoyances or feelings or thoughts at home, and never shows it to anyone else?

Consider: A person writes down their feelings about someone else. This just happens to include language that could be considered "racially inflammatory written material". Does this mean that if someone else finds out about what was written down (they don't even have to see it), the person who wrote it down can be tried for "publishing racist information"?

Or someone could just accuse someone else of creating "racially inflammatory written material".

Based on this: "the offences of displaying, distributing or publishing racially inflammatory written material do not require proof that anybody actually read or heard the material", no proof is required that it exists, just that someone thought about "displaying, distributing or publishing" it?
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The Mighty Buzzard, 18 Feb 2010 @ 1:53am

Re:
What if someone writes about their annoyances or feelings or thoughts at home, and never shows it to anyone else?
Wouldn't really qualify as displaying, distributing, or publishing if there was never an intent that anyone see it. Journals, private files, and the like aren't generally meant for public consumption, so you'd have a very strong argument that you had no thought of it ever becoming public.
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ChimpBush McHitlerBurton, 18 Feb 2010 @ 1:56am

Masters of our domain...
So apparently, in the UK, if a tree falls in the forest and no one is there to hear it, it does indeed make a sound.

Glad we cleared that up. I thought it was an unanswerable question, but it looks like the lawmakers over on that tiny insignificant island have mastered the unmasterable.

PS - UK, your food stinks and your teeth are crooked.

CBMHB
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Anonymous Coward, 18 Feb 2010 @ 2:07am

Where did you press submit? Where did it go?
I am sat in the UK as I write this comment. When I press submit, the content will be sent to a server in the US where it will be stored.

The act of writing the content was carried out in the UK and would be subject to UK laws. In this case, the act of "publishing" does not specify where it was sent, stored etc. Separately, the content itself would be stored in the US and would be subject to US federal and local laws.
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Mario, 18 Feb 2010 @ 2:10am

Re:
"While it is of course necessary that people cannot simply write anything they like[...]"

Have you ever heard of freedom of speech? Freedom of speech is not freedom of the speech you like but freedom of the speech you hate. Any other way of looking at the issue is hypocrisy, don't you think?
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Fred McTaker (profile), 18 Feb 2010 @ 2:11am

Re: Masters of our domain...
I think a better question here is:

If a tree falls in the forest, and no one is there to hear it, how will the lawyer know to sue it? How will the police know to cuff it?
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Mario, 18 Feb 2010 @ 2:27am

Re: Where did you press submit? Where did it go?
"The act of writing the content was carried out in the UK and would be subject to UK laws."

What if the guy just wrote that piece of racist text on a piece of paper and then an American friend of his went back home and published it for him? Should he be found guilty? Or, what if they had a racist talk and the American was so convinced by the Brit's arguments that when he went back home, he published it himself? Should the Brit be found guilty of that maybe? In both instances he did it in the UK, so, by your reasoning, he broke the law of the land and should be punished.

I think you should make a difference between creating the content and publishing the content. The two are not synonymous. The creation happened in the UK but the publishing happened in the US, thus, outside the reach of the UK legal system... and it should stay that way.

Don't get me wrong... I'm not a racist, I don't even know what the guy wrote about and, most importantly, I don't condone racism. Nevertheless, I don't care about all of that because the issue here is a matter of principle and, in this instance, the Brits are wrong.
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Big Al, 18 Feb 2010 @ 2:36am

Re: Re: Where did you press submit? Where did it go?
1. If the person created it in the UK for publication, then, yes, he is responsible.
2. In the case of another person creating the content and publishing overseas (writing down the speech / ideas and posting it) then, no, the original person isn't responsible since there was no creation or intent to publish by him.

You see, it is not the act of publishing, it is the creation of hate speech with the intent to publish that is the offence.

Do keep up, dear boy.
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MrBeck (profile), 18 Feb 2010 @ 3:01am

Re: Freedom of Speech
I'm afraid that in the UK there is no "freedom of speech" as enshrined in the US Constitution. The effect is as shown, there is no requirement to demonstrate "harm" to declare the "speech" unlawful, hence there is no requirement that the "speech" was ever heard. As an American who has lived in the UK for over 30 years, I am still amazed that there has never been a modern revolution here to establish some modicum of citizens rights (like the bill of rights). My only relief is knowing that Europe is even worse.
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Mario, 18 Feb 2010 @ 3:09am

Re: Re: Re: Where did you press submit? Where did it go?
"You see, it is not the act of publishing, it is the creation of hate speech with the intent to publish that is the offence."

Well, that kind of laws are expected from a country that has no mention of free speech anywhere in its laws. What makes it despicable is that some of said country's citizens try to rationalize that as being a good thing.

If what you say is true, let me put up another hypothetical example: Let's say that our racist wrote down his racist text on that piece of paper because he was out in the woods and forgot his laptop at home. Nevertheless, he was intent on publishing that text as soon as he got back home. Being a stupid racist as he is, at some point during his trip he lost his piece of paper in the woods and some boar came along, crapped on it and his racist text disappeared as soon as the bacteria in the boar poop devoured the paper it was written on. In the mean time, the racist guy gets back home, discovered that he lost his piece of paper and because he's a busy little bigot doesn't find the time to rewrite it and, thus, fails to publish it. Nevertheless, the text had been created and it had been created with an intent to publish it.

So, following you reasoning, or the reasoning behind that outrageous law you're trying to defend, he is guilty as charged because he created the hate speech and he intended to publish it even if he never did publish it. It doesn't really matter that the only witnesses were some bugs, birds and a particular boar that had a bowel movement.
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Mario, 18 Feb 2010 @ 3:14am

Re: Re: Freedom of Speech
Yup, I am aware of the fact that the Brits don't have freedom of speech as a legal right. As for Europe, some of the European countries (I won't name names) do actually have freedom of speech enshrined in their constitutions. The problem with the UK is that it doesn't have a constitution to begin with.
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Ima Fish (profile), 18 Feb 2010 @ 3:25am

"the court saying it didn't matter whether or not anyone in the UK had actually seen the content -- which seems a bit odd"

It's not that odd. Think of it as child porn. Child pornography is illegal regardless of whether it is published. It's the content itself which is illegal, not the dissemination. Although the dissemination can be illegal too.
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mike allen (profile), 18 Feb 2010 @ 3:33am

Re: Re: Re: Freedom of Speech
We are suposed to have freedom of speech as a right in the UK but some control freeks (look at 10 Downing street for a full list) dont think we should.
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ethorad (profile), 18 Feb 2010 @ 4:58am

Re: Re: Masters of our domain...
Easy, lawyers do leaflet drops on nearby forests saying "Did you fall over? Was nobody around? We can help get you the listeners you deserve! Just call 1-800-ambulancechasingscum now!"
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yozoo, 18 Feb 2010 @ 5:37am

enough
"ran afoul of some sort of hate speech laws in the UK"

hate speech laws . . . thats ugly stuff
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taoareyou (profile), 18 Feb 2010 @ 5:48am

Re:
Since when do websites force themselves to be viewed? People not interested in racist content, rarely go looking for it. I might not be able to avoid a cannonball, but I will never be affected by a website I don't choose to visit.
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taoareyou (profile), 18 Feb 2010 @ 5:55am

The Greater Plan
1. Do not write hateful things.
2. Do not think hateful things.
3. Utopia.
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WammerJammer (profile), 18 Feb 2010 @ 6:46am

UK Court Says It Has Jurisdiction Over Racist Material Stored On California Server... If Content Created In The UK
Yes in the UK and the EU you are no longer allowed to use the free speech mantra to disguise hate speech. No more N word and no more preaching against gays. No more calling a sonofabitch a Sonofabitch except in private and I'm sure they are working on a way to stop that.
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Anonymous Coward, 18 Feb 2010 @ 7:15am

Check your facts
Article 10 of the European Convention on Human Rights protects the right of freedom of expression. The UK signed up to this in 1998. Came into force in 2000.
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Mario, 18 Feb 2010 @ 7:24am

Re: Check your facts
When did that ever stood between them and some good, old-fashioned, censorship dressed up as protecting poor little citizens from the big-bad Internet?
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Mario, 18 Feb 2010 @ 7:27am

Re: UK Court Says It Has Jurisdiction Over Racist Material Stored On California Server... If Content Created In The UK
So free speech is just a mantra for you? Nice! I hope you'll find comfort in that when it's not some racist douche being censored but you or something you care about.
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The Groove Tiger (profile), 18 Feb 2010 @ 7:39am

Re: The Greater Plan
You forgot the step where you gas everyone with G-23 Paxilon Hydrochlorate.
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interval, 18 Feb 2010 @ 7:40am

One very simple and elegant example of why the 2nd amendment makes so much sense, one of the things the US has right; free speech is not only important for freedom, its also important from a practical point. Its ridiculous to make these huge, inefficient, bloated bureaucracies in charge of what people say. I'm often amazed by users in other countries (of other forums I frequent) who blow off America's legacy of free speech as unimportant or even dangerous. And this "hate speech" thing. How long before any criticism of Parliament is slapped with the "hate speech" label. Its short sighted and actually quite gutless. Some one says something you don't like, & rather than dismissing it as "sticks and stones" & ignoring it, you call in the Nanny State to "punish" the bad, bad people for you. Europeans need to grow up, stop worrying about what the other kids on the block have to say about them, and deal with real life. And especially stop worrying about what we Americans do or don't do. You're never going to get Parliament to block our speech, so you might as well be all grown up and IGNORE IT. fix Europe before you start whining about what's going on over here.
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Russ (profile), 18 Feb 2010 @ 1:51pm

Thought Police
As righteous the courts may be about hate speech, it is really only a form of censorship.

Once you start enshrining the ability to censor, no matter what the 'good' cause you have given up free speech.

The UK can no longer protect any expression of speech from other countries claiming that it violated their rules. they have forfeited any jurisdictional rights.

As to the example of child porn, you can write about it and publish, you can't create and publish images. Unlike speech/writing there are real consequences in the production of the images.
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Russ (profile), 18 Feb 2010 @ 1:54pm

Re: Interval
The US isn't far behind in classifying types of speech as undesirable. Never underestimate the desire of society to define acceptable and punish the deviant.
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FWJBOWEN, 31 May 2011 @ 12:11pm

freedom of speach
if we cannot in the western world have fredom off speach then i say to all men not fight in any army IT IS OUR RIGHT may be AK 47 say more
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