November 18, 2019

In May 2018 the applicant, Miss Alison Chabloz, was convicted of three offences under s 127(1)(a) and (b) of the Communications Act 2003, which makes it an offence to, by means of a public electronic communications network, send, or cause to be sent, a message that is grossly offensive or of an indecent, obscene or menacing character. In a blog post, Miss Chabloz had included a hyperlink to two video performances by her of anti-Semitic songs uploaded by her on YouTube. She had also uploaded a video of her performing a third song, which was grossly offensive for the same reasons.

The court was asked to consider whether Miss Chabloz had been rightly convicted. The questions were: (i) whether the posting of a hyperlink caused an offensive message to be sent under s 127(1)(b); and (ii) whether uploading a video was a communication under s 127(1)(a), as it had been made with or to an inanimate object, i.e. a YouTube server located in a bunker in California.

Mr Justice Coulson noted that in DPP V Collins [2006] 1 WLR 2223 the House of Lords held that the purpose of s 127(1) is to prohibit the use of a publicly funded service for the transmission of communications that contravene the basic standards of society. The actus reus of the offence is the sending of the message and the offence is complete when the message is sent. It makes no difference that the message is never accessed by anyone, provided that there is an intention to insult those to whom the message relates.

Further, Coulson J noted, in Chambers v DPP [2013] 1 WLR 1833 the court found that a tweet posted to Twitter suggesting that the defendant would blow up Teesside Airport constituted a message sent under s 127(1)(a), even though the message might not have been accessed immediately, but by a subsequent search. Posting a message generally to Twitter not for the attention of a specific individual or group, which was then stored electronically, is still an offence.

In relation to the first question, it was submitted that the posting of the hyperlink was a neutral act on the part of Miss Chabloz and did not cause an offensive message to be sent.

Coulson J said that answering the question involved consideration of the “nuanced question” of the extent to which the posting of a hyperlink is an endorsement of the message revealed by clicking on the link (Crookes v Newton [2011] 3 SCR 269).

In this case, he said, Miss Chabloz had told those looking at her blog that she had performed the songs and that her performances had been uploaded onto YouTube. She had posted the hyperlink to the YouTube video to facilitate their access to those performances. That was not a neutral footnote or a passive reference to something unconnected to her, but a direct signpost to the performance of her own songs. She was endeavouring to widen the distribution of her own material.

Further, the purpose of setting up the link was to cause the material to be sent. Without Miss Chabloz visiting the YouTube site, copying the hyperlink and pasting it onto her own blog page, it would not have been possible for others to access the material from that location. Miss Chabloz had put in place the process by which the video was sent, which was why it could be said that she had caused the message to be sent. The causing of it to be sent was not the act of the visitor to the blog who clicked on the hyperlink.

By posting the hyperlinks, Miss Chabloz was telling people that there was a video of her singing her songs and providing them with the means by which, with one click, they could access those performances. That was an unequivocal endorsement of the material.

The conviction under s 127(1)(b) was therefore correct.

As for posting the video and the conviction under s 127(1)(a), Coulson J said that there was nothing in the 2003 Act to provide any support for the proposition that the offensive message has to be received by a human being in order for the offence to have occurred. Further, the 2003 Act does not stipulate if, when, how or by whom any such message has to be received.

Further, it was unrealistic to suggest that the video uploaded to YouTube was intended for an inanimate object, i.e. the server. In Coulson J’s view it was a video of a song performed by Miss Chabloz, uploaded to YouTube by her, and intended solely to be seen by other people. There were intended recipients and the criminal offence did not disappear because Miss Chabloz had used an inanimate object, i.e. the YouTube platform, as her chosen method of communication.

In addition, pursuant to Collins, the offence is complete when the message is sent to the inanimate object and what happens thereafter is irrelevant. In this case, the offence was made out when the video was uploaded to YouTube by Miss Chabloz with the intention that people might view it.

The application for judicial review was refused. (R (Alison Chabloz) v Crown Prosecution Services [2019] EWHC 3094 (Admin) (31 October 2019) — to read the judgment in full, click here).