Regina v Graham Waddon
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The Appellant ran a business called “Global Web Suites” which designed the sites for MJES Group plc. The police accessed one such site, known as “xtreme-perversion”. A police constable subscribed to this web-site using a pseudonym and, a couple of days later, received a password via e-mail. He printed various pornographic images from his desktop computer at the station.
The Appellant was arrested and charged with publishing obscene articles contrary to Section 2(1) of the Obscene Publications Act 1959. On 30 June 1999 he pleaded guilty at Southwark Crown Court following a ruling made by His Honour Judge Hardy rejecting two submissions on behalf of the Appellant as to legal matters. The appeal concerned the first submission, by which the Appellant claimed that the Southwark Crown Court did not have jurisdiction to try the case as there was no publication for the purposes of the Obscene Publication Act 1959 in England: the website was based in the United States.
Rose LJ rejected the submission. Section 1(3) of the Obscene Publications Act 1959 provides:
“For the purposes of this Act a person publishes an article who – (b) in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it, or, where the matters is data stored electronically, transmits that data”
The Appellant conceded that he, or through his agents, was involved both in the transmission of material to the website in the United States and its transmission back to England and therefore he could not contend that publication did not take place in this country. The Court of Appeal held that it was not the case that there could only be single publication but that numerous publications could take place. There may be publication on a web site abroad when images are uploaded and there can be further publication when the images are downloaded elsewhere. The Court declined to speculate on the result where pornographic material was uploaded to a location out of the jurisdiction intending that there should be no transmission of that material back to the UK. That would require consideration of questions of intention and causation in relation to where the publication should take place.
The case also considered a (now defunct) point of evidence law which is not reported here (involving section 69 of the Police and Criminal Evidence Act 1984, repealed by the Youth Justice and Criminal Evidence Act 1999).
The point concerning jurisdiction does serve to highlight the worldwide nature of the internet. Regardless of the physical location of the actual data constituting the pornographic material, where it is downloaded could also, according to local law, be regarded as published there and punishable. In this case, the wording of the Obscene Publications Act, as amended, was wide enough to bring within its scope the activities of an owner of a pornographic website.
It is a simple point, and one which the Court of Appeal did not waste much time on. Downloading such material here means a publication by the website owner, and there could, of course, be a multiplicity of such publications.
Thus, where a website is accessible from many jurisdictions, there could be a plethora of local laws making that website illegal. The court did not discuss the aspect of where a website owner did not intend that individual jurisdictions should be able to download the material. This is an interesting question, and it is hard to see how such a website could verify such access, let alone control it.
Mr. Waddon is not the only person to establish pornographic websites, and it remains to be seen in practice how courts will provide local regulation of a worldwide phenomenon.