The English Court of Appeal has upheld the criminal convictions of two UK residents for publishing racially inflammatory material on a website operated from US servers. The court held that material was published for the purposes of this offence if it was made available to the public; and that the court had jurisdiction because a substantial measure of the activities constituting the crime took place in England.
In R v Sheppard and Whittle, the prosecution alleged that the defendants together operated a website which had been set up by Sheppard and hosted on a remote server in California. Whittle composed the material which he submitted by e-mail to Sheppard, who edited it and uploaded it by FTP transfer to the server. The server then converted the material to HTML and it became available for access by visitors to the website, including people within the jurisdiction of England and Wales. Sheppard had control over the contents of the website.
The defendants were found guilty at trial of publishing racially inflammatory material contrary to the Public Order Act 1986 (the Act). On appeal there was no challenge to the jury’s findings that the material was racially inflammatory. The appeal related mainly to issues of jurisdiction and whether there had been adequate proof of publication to a sector of the public.
On jurisdiction, the court held that the correct test was whether a substantial measure of the activities constituting the crime took place in the UK. This was satisfied: “The reality is that, as expressed by the judge, almost everything in this case related to this country. This is where the appellants operated, one in Preston, the other in Hull; this is where the material was generated, edited, uploaded and controlled. The material was aimed primarily at the British public. The only ‘foreign’ element was that the website was hosted by a server in Torrance, California and, as the judge observed, the use of the server was only a stage in the transmission of the material.”
As to the material being aimed primarily at the British public, the court enumerated several factors such as the existence of a dedicated British page (no other country had such a page), quotation of prices and postage in pounds sterling, links to websites of certain British political parties, and direct evidence from seized e-mails of intention to publish within England and Wales.
As to publication, the Act does not define publication other than to state that references to the publication of written material are to its publication to the public or to a section of the public. Sheppard argued that there could be no publication without there being sufficient publishees to constitute a section of the public. The only direct evidence of publication was that a police officer had visited the site and downloaded various documents. In one sense he was a self-publishee.
The Court of Appeal rejected the suggestion that there was no evidence of publication. What the prosecution had to show was publication in the sense that the material was ‘generally accessible to all or available to or was placed before or offered to the public’. The material in this case was available to the public despite the fact that the evidence went no further than establishing that one police constable downloaded it. The offence did not require proof that anybody actually read or heard the material.
Given the overwhelming factual connection with England and Wales, it is no surprise that the Court of Appeal was not deterred from upholding the conviction by the mere fact that the website server was sited in the USA. However the court’s approach to the meaning of publication is troubling. The court did not, as it could and arguably should have done, consider in terms whether under the Act it was a substantive (as opposed to jurisdictional) requirement that publication took place in England and Wales, and if so what precisely constituted the act of publication and where that was located.
In its jurisdictional analysis the court focused on the location of the appellants’ activities and their intent to publish in England and Wales. The court found that everything in the case other than the location of the server related to England and Wales.
When considering the adequacy of the evidence of publication, the court focused on mere availability to the public, holding that there was no requirement to prove that anyone had read the material. However it is unclear whether the court’s view was that:
the substantive acts of ‘making available’ had taken place in England and Wales by virtue of the activities of the defendants that had taken place in England and Wales; or
the mere availability of the material was sufficient to amount to publication in England and Wales; or
either would suffice; or
there was no substantive requirement in the legislation that publication be located in England and Wales.
These issues may be of little significance for the result in this case, since it seems likely that, under any substantive analysis of publication, the totality of the evidence would have supported a conviction. However, in a case in which more of the defendant's activities were located outside England and Wales the court would have to consider more rigorously whether the substantive requirement of publication was satisfied by mere availability of the material in England and Wales, or whether more was required such as targeting of the jurisdiction; and the relevance of the location of uploading activities. That would be a separate issue from whether the jurisdictional test of ‘substantial measure of the activities constituting the crime’ was satisfied.
Case reference: R v Sheppard and Whittle  EWCA Crim 65