Material hosted on US server broke English criminal law – R v Sheppard and Whittle, Court of Appeal

People could be convicted of criminal offences under English laws despite their material being published in a US server, the Court of Appeal has ruled. The defendants had been involved with writing or publishing racially inflammatory material, contrary to the Public Order Act. They appealed against their convictions on the basis that the material was hosted on US servers and were therefore not criminal offences caught by the English jurisdiction.

The Court of Appeal disagreed. It said that the crucial factor was that a substantial measure of the activities had taken place in England. The material had been prepared in England, uploaded onto a web site from England and this had been done in the knowledge and expectation and intent that the material should be available to the English public. In particular, there had been references for how people in England could obtain the materials by post.

The Court also dismissed the defence’s argument that there had not been actual publication in England until it could be proved that people had read the materials. The Court said that any analogy with defamation laws – which had applied a similar test – was flawed. Defamation was a civil wrong which considered the damage done to someone’s reputation. This case involved criminal law, where the mere posting was enough to break the law.