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+ - European ISPs Could Be Subject To UK Laws

Submitted by
Brian Ribbon
Brian Ribbon writes "The European Parliament has long demanded an intra-jurisdictional approach to criminal activity on the internet — typically using the protection of children as justification — however the Single European Police State has taken a step closer to (or further from) reality, with the introduction of the Coroners and Justice Bill. The bill — which is currently being discussed by a 'select committee' in the English Parliament — seeks to criminalise both UK and European service providers under UK law if they dare to provide access to any material which is deemed to encourage suicide or display 'pornographic' drawings of children.

"Schedule 10 of the Coroners and Justice Bill (as amended) intends to criminalise any UK service provider which "does an act, in an EEA state other than the United Kingdom, which encourages or assists the suicide or attempted suicide of another person and which is intended to encourage suicide or an attempt at suicide, and does that act in the course of providing information society services". Schedule 11 of the Bill intends to criminalise any UK service provider which "is in possession, in an EEA state other than the United Kingdom, of a prohibited image of a child, and is in possession of it there in the course of providing information society services". An entity is providing an information society service if it operates "any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service". This includes internet service providers, web hosting companies, and search engines which cache data from other websites.

The above clauses may also be applied to a service provider which is registered anywhere in the EEA (European Economic Area), if the institution of criminal proceedings "is necessary for the purposes of the public interest objective, relates to an information society service that prejudices that objective or presents a serious and grave risk of prejudice to that objective, and is proportionate to that objective." In short, the UK authorities will prosecute if they believe that the service provider's provision of certain material is offensive to the British public. A service provider is registered in the UK or an EEA state if it "effectively pursues an economic activity using a fixed establishment in [..] the United Kingdom, or [an] EEA state".

Any service provider (registered either in the UK or another EEA country) which is prosecuted under Schedule 10 of the bill (if enacted as amended) will be charged with an offence under the 1961 Suicide Act, which carries a maximum prison sentence of 14 years. Any service provider which is prosecuted under Schedule 11 will be tried for possessing a prohibited image of a child, a new child sex offence which will be created by this Bill.

A "prohibited image of a child" (as amended) is any visual depiction (excluding photographs or pseudo-photographs) of a (virtual) person who appears to be under the age of 18, where the image was "produced solely or principally for the purpose of sexual arousal", is "grossly offensive, or otherwise of an obscene character", and focuses on the genital or anal area, depicts children witnessing sexual activity, or shows children engaging in sexual activity. Such legislation was demanded by childrens' charities and police agencies who claimed that "cartoons of child sexual abuse" could "fuel the inappropriate fantasies of potential abusers", despite evidence which suggests that paedophiles are less likely to act on their urges if they are able to generate sufficient fantasies about children. Furthermore, legislators have ignored research which suggests that most people who abuse children do not have a significant sexual interest in children (and so are more likely to seek pornographic images of adults, not child sex cartoons).

The Bill apparently attempts to exempt ISPs who act as "mere conduits", but the relevant clause is written in such a way that ISPs which employ traffic shaping techniques are not considered "mere conduits". There is also an exception for caching, but this does not include the reduction of images to thumbnails. Web hosts may be subject to prosecution if they refuse to remove offending material which they have been notified of, even if they are not made aware that possessing or providing access to such material constitutes a criminal offence in a foreign (UK) jurisdiction. If enacted as presently amended, this Bill could theoretically lead to the operators of non-UK ISPs and web hosts being prosecuted under UK law for a ridiculous child sex offence or complicity in an act of suicide, simply because the ISP or host provides access to material which is illegal in the UK."
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European ISPs Could Be Subject To UK Laws

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