Cyber Law on Obscenity - Essay Example

Cyber Law on Obscenity Introduction: Information is the new mantra that spells success in the modern world1. Intellectual capital is important and the use of business worldwide webs spells power2. The emergence of the Internet has globalized the business environment and dissolved boundaries between nations, giving rise to issues of legal boundaries of digital property.3 It has been described as “a decentralized, global medium of communication comprising a global web of linked networks and computers.4 But the electronic medium has presented new challenges, where the free and unfettered use of the Internet and its capacity for abuse have raised new issues in law , such as the need for regulation of content and access. Obscenity in UK law: Smith and Hogan state that “the ordinary meaning of obscene is filthy, lewd or disgusting. In law the meaning in some respects is narrower, in other respects possibly wider”5 The test provided for under the law for obscenity of an item is that if its effect in general tends to “deprave and corrupt persons” who have access to it.6 While earlier versions of the Act covered only published material, it was amended in 1994 to also include material transmitted over the Internet, including the possession or ownership of such material. This was modified by further legislation in recent times.7 Further more, the Computer Misuse Act of 1990 has also made it illegal for a user to download pornographic or obscene material if the service provider does not permit it. The provisions of the Digital Millenium Copyright Act which are applicable in many countries of the world can also make an ISP responsible for offensive content that is available on its website8 and in some cases, criminal liability may also be imputed.9 Regulating Cyberspace: Cyberspace has been defined as “the total interconnectedness of human beings through computers and telecommunication without regard to Physical geography”9 and “crime has ceased to be largely local in origin and effect.”10 According to Greenleaf, cyberspace is better regulated by law – not through its limits as the regulating factor; rather through the exercise of the law in modifying the “natural” architecture of cyberspace that will render it a more effective tool.11 Cyberspace architecture is relatively plastic, and the law can be applied to require changes or modification of the software, codes or minimum standards.12 Crimes could be multifaceted and multinational, raising issues of local jurisdiction. For example, in a recent case involving Yahoo, USA, a French Court found Yahoo liable under its local jurisdiction.13 Case law: Within the UK, there is provision under the Obscene Publications Act14 which allows the defence of transmission of such material if it is in the public good. The Courts have spelt out guidelines in allowing such transmissions, where the jury is to assess the number of viewers who could be depraved and the strength of such displays to corrupt weighed against the literary, social and ethical merit of the work.15 However under Section 1(2) of the Act, which defines matter that will be considered obscene, the article definition has been expanded to also include videos and pornographic computer images. For example, in the case of R v Fellows16, a pseudo photograph was also found to be equivalent to the storage and transfer of pornographic images over an electronic medium and this was also the case in R v Arnold17. Furthermore the provisions of Section 1 of the OPA 1959 have been further amended18 and schedule 9 on the nature of publication that will be considered offensive also being expanded to include data stored and transmitted electronically, which would also include negatives from which further prints may be made19. The earliest conviction for the publication of obscene matter was the case of R v Gott20. However, in the present, where transmission of material over the Internet is at issue, the question of whether ISPs can be held criminally liable would be determined by the clause in the OPA21 which will examine criminal liability on the basis of whether the material could constitute “having” for purposes of “gain”.22 This would impute a measure of direct control over the material, which has been upheld in some cases23 but has been rejected in others, such as in the case of Zeran v AOL24, where the service provider was absolved of responsibility for defamatory material posted by a third party. But in the case of Grace v EBay25, the defendant’s reliance on the provisions of the California Decency Act which precludes legal action against an ISP provider who is not the content provider, was rejected by the Court. Under the common law, proving a charge of obscenity does not require that a motive must be established in order to impute criminal liability.26 Rather, it is adequate to show that the minimal level of mens rea exists, in that there was knowledge that an unlawful result would occur.27 It is of no use for a defendant to argue that he was innocent of an intent to corrupt and deprave, it is sufficient to establish through evidence that the publication of the material would corrupt and deprave and therefore the defendant will be deemed to be guilty of the intent to do so. This is so also in the case of secondary parties such as ISP providers, or distributors of published material or transmitters of material, since the charge of complicity in the propagation of obscene material would also include their knowledge that their actions would assist the real perpetrators of transmission of obscene material.28 For example, in the case of R v Bainbridge29 the intent to commit an offence was established merely by the defendant’s knowledge of the transmission of obscenity that was taking place and a sufficient degree of mens rea was established for criminal culpability. In yet another case – that of NCB v Gamble30 it was even held that any kind of assistance or encouragement provided in the propagation of obscenity with an attitude of indifference to whether or not an offence had been committed would in itself be sufficient to constitute mens rea on the part of a secondary party. In the case of Hicklin31 the defendant had the knowledge that the material in question could deprave and corrupt, therefore the question of whether or not his motives were good were irrelevant. Apart from the defense that may be offered by a person who is accused, stating that the material was distributed for the public good32, another defense that may hold good is if the accused person claims that he had no knowledge of the content of the material that he was distributing and that it constituted the transmission of obscene material that would deprave and corrupt.33 Conclusion: It may be noted from the above that the scope of the laws on obscenity within the UK have broadened and widened over the years to encompass within their scope all kinds of materials that are transmitted to the general public, including such electronic forms such as negatives that may be used to produce prints or electronic forms of data that are stored and transmitted over the Internet. Moreover, it may also be noted that under the provisions of the Digital Millenium Act, jurisdiction is no longer an issue for prosecution of obscenity offences, therefore the dangers posed by the electronic medium do not allow criminals to escape scot free. On the basis of the above submissions it may also be noted that the criminal provisions against obscenity are strictly enforceable and this has functioned as a strong legal measure against the propagation of obscene material, since it can so easily be deemed to be a criminal act. This is so even in the case of secondary parties and it may be noted from the above that the requirements of mens rea that are normal in criminal cases are different in obscenity cases where the mere knowledge that obscene material was being transmitted is sufficient to impute liability. Therefore, this also opens scope for ISPs to be held criminally liable for the transmission of obscene material. Smith and Hogan have pointed out how the various forms of criminal intent also includes obscene libel.34 Edwards had pointed out how the Protection of Children Act specifically caters to children, where the effect that the material may have will be accorded an even greater importance than its form, therefore anything potentially damaging to the morals of children could be illegal, so that even sexual or sexually suggestive offences will be liable.35 Moreover, it may also be noted that while in earlier times, the charges that were brought against offenders for transmission of pornographic or blasphemous material was rare as in the case of R v Gott, securing convictions under the Obscenity Act has now become much easier with a relaxing of the standards of mens rea that are required to establish criminal culpability for the transmission of offensive material. Therefore, more cases of obscenity are being handled by the Courts and therefore function as a good deterrent to criminals. Due to the kinds of decisions that are being handed out and the liability that is being imputed even upon ISPs there is an even greater standard of care that is being mandated in the kind of material that moves over the Internet. Thus, in conclusion it may be stated that in view of all the legislative provisions that have been addressed above, there is adequate provision under the law to rigidly and strictly enforce a standard against obscenity so that the members of the public and especially vulnerable children are protected from an onslaught of obscene material transmitted over the Internet. Bibliography Books/Journal Articles: * Blackstones Criminal Practice, 1996. London, Blackstones: p. 656 (1996) * Bernadette E. Lynn (2000) “Intellectual Capital: Unearthing Hidden Value by Managing Intellectual Assets” Ivey Business Journal., Jan.-Feb, at 48 * Edwards, S.S.M, 1996. “Beyond control: gaping holes in the Net” IN “Sex and gender in the legal process.” London, Blackstone Press at 132-34 * Greenleaf, Graham. (1998). “An end note on regulating Cyber space: Architecture vs. Law?” [Online] Available at: http://www.austlii.edu.au/au/journals/UNSWLJ/1998/52.html * Gibson, William. (1984). Neuromancer. Ace Science Fiction * Lessig, Lawrence. (1997). “Law of the Horse – what Cyber law might teach” [Online] Available at: http://www.lessig.org/content/articles/works/finalhls.pdf * Smith, K.J.M.,1991. “A Modern Treatise on the Law of Complicity.” London, Clarendon Press, see chapter 6 * Smith, Sir John and Hogan Brian, 1996. “Criminal law” (8th edn) Butterworths * Shapiro, Carl &. Varian, Hal R. (1999) “Information Rules: A Strategic Guide to the Network Economy 2” * Stephan Bernhut (2001). “Measuring the Value of Intellectual Capital” Ivey Business Journal., Mar.-Apr, at 16 * Thurow Lester C. (2000). “Building Wealth: New Rules for Individuals, Companies and Nations in a Knowledge-Based Economy” Harper Business ed : 116-25 Cases: * ACLU v Reno 929 F Supp 824 (ED Pa 1996). * Hicklin (1868) LR 3 QB 360. * Liangsiriprasert v United States (1991) 1 AC 225 * NCB v Gamble (1959) 1 QB 11 * Recording Industry Association of America v Verizon (Unreported. January 21, 2003. Judge Bates, District of Columbia) * R v Bainbridge [1960] 1 Q.B. 129. * R v Calder and Boyars Ltd (1968) 3 All ER 644 * R v Fellows * R v Arnold * R v Gott (1922) 16 Cr. App. R. 87 * Roger M. Grace v. eBay Inc. 16 Cal. Reporter. 3d 192 (Cal. App. 2004) * Shaw v. Director of Public Prosecutions [1962] AC 220, Anderson [1972] 1 QB 304. 28. * Taylor (1995) 1 Cr App R 131 * The case of Yahoo, USA. [Online] Available at: http://www.cdt.org/jurisdiction/ * Zeran Kenneth M v. America Online, Inc.; US District Court, ED Virginia, 958 F.Supp. (1997); US Court of Appeals, 4th Circuit, CA-96-1564-A Legislation: * Broadcasting Act of 1990 * CJPOA of 1994, s 168(1) * The Obscene Publications Act of 1959, 1965 * The Protection of Children Act of 1978 * Indecent Displays Control Act (1981) * Digital Millenium Copyright Act * Computer Misuse Act of 1990 Read More