Three Strikes Is Out? UK Judges Rule Internet Ban Is 'Unreasonable', Even For Sex Offenders

from the it's-a-human-right dept

Wed, Nov 14th 2012 8:39am — Glyn Moody

Last week, Techdirt wrote about a US teenager being banned from using the Internet until his 21st birthday as punishment for his involvement with some Web site break-ins. That seems incredibly harsh, and as Mike noted, earlier bans have been tossed out on the grounds that they were unreasonable.

And that is exactly what has just happened in the UK, as the Guardian reports:

Banning anyone from the internet is an "unreasonable" restriction, two appeal court judges have ruled, suggesting that access to a computer at home has become a basic human right.

The decision by Mr Justice Collins and Judge Nicholas Cooke QC signals judicial recognition of how pervasive digital communications are in an era when a multitude of services can be obtained online.

What makes this judgment even more interesting is that, as with cases in the US, it concerned a sex offender. Normally, these result in especially severe sentences. So for an Internet ban to be held to be "unreasonable" even here means that for far less serious offences -- unauthorized sharing of copyright works, say -- it is hard to see Net disconnection imposed by a lower UK court being upheld upon appeal.

That would seem to spell the end of the "three strikes and you're out" approach in the UK. Of course, there are still plenty of other unjust ways of exacting collective punishment on families -- throttling their Internet connection rather than cutting it off, for example -- but it is nonetheless a hugely important decision. In particular, it seems bound to impact the UK's Digital Economy Act, whose detailed implementation is still being discussed.

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Filed Under: bans, human right, internet access, three strikes, uk

26 Comments

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Cory of PC (profile), 14 Nov 2012 @ 8:49am

So... it's all right in the UK to allow sex offenders on the Internet, but it's all right in the US to ban teens from the Internet?

... I never thought I had to type that sentence out.

And to note: I'm not in favor of sex offenders, but if the UK can see that it's completely stupid to prevent them from getting on the Internet, while it's all right to do so to a teen here in the US... we Americans really need to get our heads free and start seeing the real picture of the digital world.
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Zakida Paul (profile), 14 Nov 2012 @ 8:53am

Good
Nice precedent here that should mean that future cases would also get thrown out. Good to see there is still some common sense in the world.
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sehlat (profile), 14 Nov 2012 @ 8:55am

Re: Good
To quote Poul Anderson and Gordon Dickson:

There is much wisdom in the universe. Unfortunately it is unevenly distributed.
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Anonymous Coward, 14 Nov 2012 @ 8:57am

" There is much wisdom in the universe. Unfortunately it is unevenly distributed. "

Heh, nice.
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MrWilson, 14 Nov 2012 @ 9:04am

Re: Re: Good
Considering the size of the universe, it could be evenly distributed and we still might not see much on earth.
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out_of_the_blue, 14 Nov 2012 @ 9:05am

Not exactly hard time...
"He was sentenced to a community order with three years supervision at Woolwich crown court in June. He was also subjected to a sexual offences prevention order (Sopo), banning him from owning a computer, using a camera in public and coming into contact with children at work, and allowing the police to raid his home at any time."

This results from the odd mix of lunacy in the UK. Plus recall the current Jimmy Savile / BBC scandal there shows that even actual sexual assault is let go by obvious criminal rings, as does the Jerry Sandusky Penn State child sex ring in which boys were provided to wealthy donors. In the US, many states wiretapping laws would get MUCH more severe -- criminal -- sentences.

SO I wouldn't draw any conclusions from this. But keep trying to scrape through the bottom in support of your agenda against "three strikes"...
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ethorad (profile), 14 Nov 2012 @ 9:08am

Unauthorised sharing of copyright works is far less serious than sex offences? It's almost as if you don't care about artists!
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out_of_the_lube, 14 Nov 2012 @ 9:26am

Bet it will be reasonable for non commercial sharing
after all thats the worse thing anyone can do. I am curious as to whether out_of_the_blue shares files (books) from his file server (bookcase), whether they are his or not his (his families).
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Anonymous Coward, 14 Nov 2012 @ 9:30am

i believe you will find that the whole of the EU has already outlawed 'three strikes'. as the UK is part of the EU, i imagine they would have a hard time trying to go down the banning someone from the internet route. this is good news for the people but i bet a dime the entertainment industries are climbing the walls and trying to organise appeals procedures, just so as to be ready. the entertainment industries totally ignore that some much of everyday life is now done over the internet and only the internet. they need to be careful trying to force this issue, they could find they are then held responsible for all sorts of things that happen to people, particularly if relying only on an accusation with only an IP address as 'evidence'!
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Anonymous Coward, 14 Nov 2012 @ 9:55am

Re:
Those teens are nothing but a bunch of freetards like Mike here and all they do is suck down free stuff from the internet and destroy the economy!! They all need to be banned not just a few of them young snapper-whippers.

/sarcasm
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Anonymous Coward, 14 Nov 2012 @ 9:58am

These are probably judges that got fed up calling various customer service reps and getting told that you should "..go online to our website and click 'this' and 'that' and 'this' and 'that'..." Or they are probably upgrading their system so that criminals can just check-in online with their parole officers and vice-versa.
Either way if they see it as a basic human right, maybe all internet access should be free, and if you get caught breaking the law you lose that privilege but instead you have to pay for your internet access.
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Atkray (profile), 14 Nov 2012 @ 10:29am

Hey Fred!
When is the next flight from Brazil to London? We need to move that team to a new project.
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Anonymous Coward, 14 Nov 2012 @ 10:31am

Re:
I don't mind committing sexual acts on some artists to even it up?
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PaulT (profile), 14 Nov 2012 @ 10:45am

Re: Not exactly hard time...
"This results from the odd mix of lunacy in the UK. "

No the lunacy is still in the US, hammering away like the proverbial chimp. I must admit I don't see your point. What does the harshness of the punishment have to do with any of the points in the article? Why do you attack it as though the fact that there would be harsher punishment in the US is a surprise - despite that being what the article is about in the first place? Sorry that there's civilized countries out the that try to do things with offenders other than lock them up in a cage, but that's got nothing to do with the effectiveness nor applicability of the sentence.

"even actual sexual assault is let go by obvious criminal rings"

So? Was there any evidence in this case to suggest he was involved in such a thing, or is that just your usual "must attack every article" reflex just spazzing out because you couldn't find any way or addressing the actual article?

"SO I wouldn't draw any conclusions from this."

At what point in this case should he have waited before commenting on it?

"But keep trying to scrape through the bottom in support of your agenda against "three strikes"...|"

Until that idiotic idea, plagued with potential for abuse and collateral damage - all without any realistic effect on the supposed target - is struck down, i see no reason why the articles won't continue. Nor will your pathetic jabberings, I fear.
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Anonymous Coward, 14 Nov 2012 @ 10:49am

Re: Bet it will be reasonable for non commercial sharing
Also, how many were bought second hand?
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Violated (profile), 14 Nov 2012 @ 10:57am

D.E.A (D)
I can't say that the UK Government has been serious on 3 strikes and you are out. That "out" part appeared to have been wrote off long ago.

Instead they have a large array of tools including suspension, education, contract agreement, bandwidth reduction and of course fines.

Well 2013 may go down as the year of the DEA but I would not be surprised if further delays made it slip into early 2014.
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Anonymous Coward, 14 Nov 2012 @ 10:58am

Re:
Well, the EU law is far too vague. I would suggest you look at the HADOPI law-package in France, which include a "three strike" deal enforcement. I know many politicians believe that it is against the EU law, but it has not yet been determined. On the other hand netcable-cutting is not really something you cannot enforce, keeping a person away from a network realistically without ridiculously disproportionate costs and therefore it would be a bad idea to use as a punishment in the first place, but that is a detail.
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Violated (profile), 14 Nov 2012 @ 11:01am

Re:
You are correct that the EU did outlaw 3 strikes schemes but they did add the exception that this would not apply to countries who already had this scheme planned namely France and the UK.
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Anonymous Coward, 14 Nov 2012 @ 11:48am

Re: Re: Re: Good
that's because a lot of the wisdom has gotten sucked into black holes
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The eejit (profile), 14 Nov 2012 @ 12:00pm

Re: Re: Re: Re: Good
Those are now called 'moron holes'. Didn't you get the memo?
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Anonymous Coward, 14 Nov 2012 @ 12:37pm

Re: Not exactly hard time...
Yeah, there's absolutely no problems with 3-strike schemes. Which is why they're such a rousing success in France, and why the government is cutting funding for it.
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ethorad (profile), 14 Nov 2012 @ 12:52pm

Re: D.E.A (D)
I can see it now - we haven't disconnected people, only reduced their bandwidth to 1 bit per fortnight.
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ethorad (profile), 14 Nov 2012 @ 12:52pm

Re: D.E.A (D)
I can see it now - we haven't disconnected people, only reduced their bandwidth to 1 bit per fortnight.
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G Thompson (profile), 14 Nov 2012 @ 4:39pm

Re:
Sorry to tell you this but the rest of the world's treatment of Juvenile offenders (with the exception of Somalia it seems) compared to the USA's is absolutely civilised whereas the US it seems has no concept of doli incapax, will try minors (as young as 14..12 in some states) as adults will ALL consequences with that - up to including life imprisonment )not death ANYMORE it seems.. though IT WAS AVAILABLE), and has the worst treatment and 'per head per population' juvenile incarceration of ANYWHERE on the planet.

It's not just the 'digital' world you need to look at.
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Duke (profile), 15 Nov 2012 @ 4:19am

Old News
I haven't read this judgment (it doesn't seem to be online yet; despite being handed down on Friday), but this is old news. The Court of Appeal made it clear that blanket Internet bans weren't allowed in these cases back in 2011. The Court has some really lovely things to say (emphasis added):

A blanket prohibition on computer use or internet access is impermissible. It is disproportionate because it restricts the defendant in the use of what is nowadays an essential part of everyday living for a large proportion of the public, as well as a requirement of much employment. Before the creation of the internet, if a defendant kept books of pictures of child pornography it would not have occurred to anyone to ban him from possession of all printed material. The internet is a modern equivalent.

Although the [alternative order] restricting internet use to job search, study, work, lawful recreation and purchases has its attractions, it seems to us on analysis to suffer from the same flaw, albeit less obviously. Even today, the legitimate use of the internet extends beyond these spheres of activity. Such a provision ... would, it seems, prevent a defendant from looking up the weather forecast, from planning a journey by accessing a map, from reading the news, from sending the electricity board his meter reading, from conducting his banking across the web unless paying charges for his account, and indeed from sending or receiving Email via the web, at least unless a strained meaning is given to 'lawful recreation'. The difficulties of defining the limits of that last expression seem to us another reason for avoiding this formulation. More, the speed of expansion of applications of the internet is such that it is simply impossible to predict what developments there will be within the foreseeable lifespan of a great many [Sexual Offences Prevention Orders], which would unexpectedly and unnecessarily, and therefore wrongly, be found to be prohibited.

The case concerned 4 separate appeals of these SOPOs, and the Court struck out all of them (although one due to it being unnecessary as the guy was under imprisonment for public protection), removing any reference to banning or limiting Internet or computer access, instead requiring that they only access the Internet on devices that recorded their history, made that history available to the police on request, and didn't delete it.
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Duke (profile), 15 Nov 2012 @ 4:33am

Re: D.E.A (D)
Well 2013 may go down as the year of the DEA but I would not be surprised if further delays made it slip into early 2014.
Last time I met with Ofcom, the initial obligations code part of the DEA (the letter-writing bit) was scheduled to start in early 2014. However, that is if nothing else goes wrong, and it already looks like they are behind. Plus some of the next stages are going to be quite tricky, and open to legal challenges.

If that does go through on schedule, the earliest that "technical measures" can come in force is 2015, but I find it unlikely that Ofcom will be able to get through the full reporting and consulting process in a year (particularly given that legal challenges are going to be even easier against the technical measures part).

I think the copyright enforcement lobby still want the technical measures stuff to come into force, but the Government doesn't really know what it's doing (plus there's been a reshuffle at DCMS, so no one quite knows what they're doing). At least, that's my impression.
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