Racist Content on US Server Within UK Jurisdiction

by Katy Murcutt - Paralegal

11 February 2010, filed under Ecommerce

The Court of Appeal has ruled that the laws of England and Wales shall directly apply to material published online even when the hosting server is located in another country or outside of the European Union. Provided that a significant portion of the activities has taken place within England or Wales, this jurisdiction shall apply.

The Court of Appeal recently heard two men’s appeals against their respective convictions for the publication of racist content online. The men’s appeal was based on their claim that the laws of England and Wales did not apply because the server hosting the illicit material was located within the United States. The Court denied the men’s claim as the majority of the activity had taken place within the United Kingdom.

Mr Stephen Whittle had written numerous articles of a derogatory and racist nature which were then edited and placed online by Mr Simon Sheppard. The articles were specifically offensive to Jewish and black people. The issue was that this racist material would create tensions between different cultures and ethnicities.

The lawyers acting for Mr Whittle and Mr Sheppard argued that the racist material had not been published as there was no formal proof that any individual having read the illicit material.

The trial judge stated that for something to be published it must be available to the public or a section of the public and generally accessible to the public.

The Court of Appeal deemed that the racist content was in ‘writing’ and so came under the scope of the Public Order Act. This Act contains offences for the publication of racially inflammatory material. The Court of Appeal ruled that the racist material did count as being ‘written material’ under the Act despite it being online material.

The offences of displaying, publishing or distributing racially offensive material or content do not require proof that a member of the public has read the material.