Republished: This content was originally posted on benscomputer.no-ip.org in May 2010. You can see the original in the archive.
The courts are no stranger to the online world that so many of us enjoy daily. Despite being described by many as a lawless world, most of society is becoming increasingly aware that laws in the real world also apply to our online existence.
It is possible, as in the case of Gary Mckinnon, that attempts may be made to try you under the laws of another country.
Despite these, already rather staunch controls, two new precedents have been set (in practical terms rather than in the true legal sense). This article will examine the implications of these two new developments.
When is a joke not a joke?
Readers may recall the recent case of Paul Chambers (AKA the Twitter Joker). Whilst his local airport was closed, Mr Chambers posted a frustrated message to Twitter. The message posted was intended as a joke and read
Crap! Robin Hood Airport is closed. You've got a week and a bit to get your shit together otherwise I'm blowing the airport sky high!
This message was discovered by personnel at the airport, who were duty bound to pass the intelligence onto the authorities. Although the airport never considered the message to be a credible threat, Mr Chambers was charged and prosecuted under the Communications Act.
Mr Chambers initially entered a guilty plea, but changed this to 'not guilty' in March 2010.
In May 2010, Mr Chambers was found guilty by the court and was ordered to pay a £385 fine and £600 in prosecution costs. Obviously the case became hotly debased, with supporters of Mr Chambers arguing that the message was clearly a joke, and the prosection therefore an overreaction. Supporters of the prosecution split into two further factions - those sensitive to the purported risk from terrorists and those who felt the joke was puerile and immature. This group largely felt that Mr Chambers deserved the punishment for his stupidity.
Now that the heat of the debate has faded, what are the implications for users throughout the United Kingdom? Some of the implications are, in hindsight, quite obvious. The case has reaffirmed that;
- The Internet constitutes a public communications network as defined under the Communications Act.
- Public Material could be viewed by absolutely anyone
- It's difficult to detect sarcasm or humour in written text
- The law has no sense of humour
The case has also confirmed several aspects of the Communications Act with the potential to have far reaching implications.
The first of these is that threatening or malicious do not have to be sent to the aggrieved party. Simply posting them publicly on the internet constitutes publishing in the eyes of the court.
The implications for those of us who access the internet from within the United Kingdom are reasonably clear. You are liable for anything you publicly post, whether in jest or otherwise.
This liability could, dependant on the content posted, be sufficient for the Crown Prosecution Service to take legal action against you.
In itself, this is not new. In the introduction to this article, several examples were given of where liabilities can cross back into the real world. Where this case differs, is that the content that Mr Chambers posted was a short passage of text. Some would probably consider this case an infringement upon an individuals right to free speech. Regardless of whether you support or oppose the prosecution, it is clear that users need to consider the implications of what they post before they hit 'submit'!
Is Private Chat Publishing?
The second development is an ongoing prosecution with implications related to the first.
Due to reporting restrictions, the facts of this case are far less clear that that of Mr Chambers. What is clear, however, is that the defendant is being prosecuted under the UK Obscene Publications Act (OPA) and the evidence at the centre of the case is a log from an online chat between two individuals.
Most internet users would consider such a discussion to be private, however to suceed in this case the CPS will need to establish that the content of the conservation was published. If publishing cannot be established then the case will fail.
The alleged content of the logs has not been revealed and is largely immaterial to this analysis.
The prosection may try to claim that the creation of the logfiles by the chat operator constituted publishing, it may also be that the log files were publically available on the internet.
It is possible, although unlikely, that they may claim that communication via the internet constitutes publication, even if the content is not publically viewable. The contention would presumably be that the Internet is a public network, and that any communication is therefore posted to this public forum.
Any discussion on the Internet, whether conducted in 'private' or not, would then be regulated by the laws that govern the traditional methods of publishing material. This could potentially criminalise many law abiding adults, especially those interested in topics such as BDSM.
This would clearly have implications forthe individuals right to free speech. Although it would be infeasible for the Government to monitor every conversation, just the uncertainty as to whether they are listening to you would be enough to cause many people to self-censor.
The European court of Human Rights (ECHR) recently ruled that the mere existence of secret monitoring measures may be sufficient for an individual to file a complaint. This, however, is to be decided on a case by case basis. What it effectively means, however, is that the Government do not need to be listening to you to breach your Human rights, just the knowledge that they could be listening may lead to self censorship.
Overall, the outlook for Internet usage in the UK may appear quite bleak at first.
There is very little action that can be taken to avoid following Mr Chambers to court (other than a liberal dose of common sense when using the Internet!), but the implications are unlikely to impact upon the lives of too many users.
The sort of person who makes the type of misguided comments needed for a prosecution, is probably going to find themselves in trouble anyway. This ruling simply provides them with another opportunity to do so.
The second development certainly appears to be more serious for free speech than the former. However, one of two routes are likely to be followed - Either the court will recognise the free speech connotations, or the case will proceed and chat operators will act to defend their users.
Simply turning off logging and turning on encryption would completely negate the impact of any ruling that may be made in this case. Many chat operators such as MSN and Skype already encrypt communications between users. This trend would simply extend to all chat operators, especially with the performance of modern computing hardware offestting the performance overhead traditionally associated with encryption.
So whilst the cases are of great interest, it is unlikely that the implications of either will give the majority of users cause for concern.