Legal Issues Legal Issues Computer Misuse, Defamation, Pornography, Spam

2 Computer Misuse Act 1990 Creates three new criminal offences: unauthorised access to a computer; unauthorised access to a computer; unauthorised access with intent to commit a serious crime; unauthorised access with intent to commit a serious crime; unauthorised modification of the contents of a computer. unauthorised modification of the contents of a computer. In all cases the access must be intentional. Maximum penalty for the first is six months imprisonment or a fine of £2000. For the others, five years or an unlimited fine.

3 The effect of modern communications 1980 – any country could control fairly effectively what was available to its citizens in print or in video form – a country cannot control what is available in print or video form on the web or what is broadcast to it through satellite television.

4 The law across frontiers Criminal law: A person guilty of a crime in country A can be brought back from country B to face trial if: –there is an extradition treaty between A and B; and –what he is accused of would also be a crime in country B; and –there is prima facie evidence that he is guilty as charged.

5 Defamation Defamation means making false statements that will damage someone’s reputation, bring them into contempt, make them disliked, and so on. Defamation means making false statements that will damage someone’s reputation, bring them into contempt, make them disliked, and so on. (In England and Wales, a distinction is made between slander, which is spoken, and libel, which is written or recorded in some other way, including .)

6 Defamation Act 1996 (UK) States that someone has a defence against a charge of defamation if he can prove that he was not the author, editor or publisher of the statement complained of, or he was not the author, editor or publisher of the statement complained of, or he took reasonable care in relation to its publication, and he took reasonable care in relation to its publication, and he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement. he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

7 Defamation in the USA In the USA, to succeed in a libel action, a public figure needs to show not only that the statement was factually incorrect but also that it was made maliciously or recklessly.

8 Cross-frontier defamation A court in New Zealand has recently ruled that an organisation based in New Zealand could take action in a New Zealand court against an Australian newspaper that, it was claimed, had published defamatory statements about it on its website in Australia.

9 Electronic Commerce (EC Directive) Regulations 2002 These regulations follow the EC Directive in distinguishing three roles that an ISP may play: mere conduit, mere conduit, caching, and caching, and hosting. hosting.

10 Mere conduit The ISP does no more than transmit data; in particular, the ISP does not –initiate transmissions, –select the receivers of the transmissions, –select or modify the data transmitted. If it is acting in the role of a mere conduit, the ISP cannot be liable for damages or for any criminal sanction as a result of a transmission.

11 Caching An ISP acts in a caching role when the information transmitted is the subject of automatic, intermediate and temporary storage, for the sole purpose of increasing the efficiency of the transmission of the information to other recipients of the service upon their request.

12 Hosting Where an ISP stores information provided by its customers, it is acting in a hosting role. In this case, it is not liable for damage or criminal sanctions provided that it did not know that anything unlawful was going on; it did not know that anything unlawful was going on; where a claim for damages is made, it did not know anything that should have led it to think that something unlawful might be going on; or where a claim for damages is made, it did not know anything that should have led it to think that something unlawful might be going on; or when it found out that that something unlawful was going on, it acted expeditiously to remove the information or to prevent access to it, and when it found out that that something unlawful was going on, it acted expeditiously to remove the information or to prevent access to it, and the customer was not acting under the authority or the control of the service provider. the customer was not acting under the authority or the control of the service provider.

13 ISPs as censors To protect themselves against liability for damages, when ISPs receive a complaint about a site they are hosting, they try to make it inaccessible as quickly as possible. They are not in a position to judge whether the complaint is justified.

14 Pornography The question is not what is pornography but what is unlawful. Is possession unlawful? Is possession unlawful? Is broadcasting unlawful? Is broadcasting unlawful? Is selling unlawful? Is selling unlawful? The answer to all these questions is very different in different countries.

15 UK Obscene Publications Act 1959 defines obscene as “tending to deprave or corrupt”. It is an offence to publish obscene material or to possess it with the intention of publication for profit. It is an offence to publish obscene material or to possess it with the intention of publication for profit. It is not an offence simply to possess it. It is not an offence simply to possess it. Possible defences are artistic merit or the public good. Possible defences are artistic merit or the public good. The interpretation of “tending to deprave and corrupt” has changed over the years. The interpretation of “tending to deprave and corrupt” has changed over the years. A lot of the fuss about “porn on the Internet” relates to material that would not be considered obscene by a court. A lot of the fuss about “porn on the Internet” relates to material that would not be considered obscene by a court. Concern arises when offensive material is presented to users who have not asked for it or when it becomes available to children who would be prevented from accessing it through other channels. Concern arises when offensive material is presented to users who have not asked for it or when it becomes available to children who would be prevented from accessing it through other channels.

16 USA First amendment to the constitution famously states: “Congress shall make no law... abridging the freedom of speech, or of the press” This means that attempts to make pornographic material illegal (including an Act of Congress aimed at cleaning up the Internet) have often been ruled unconstitutional. To be legally obscene: –the dominant theme of the work, as a whole, must appeal to a prurient interest in sex; –the work must be patently offensive by contemporary community standards; and –the work must be devoid of serious literary, artistic, political, or scientific value. Private possession is not an offence but Federal laws prohibit obscene material being broadcast on radio and television, mailed, imported, or carried across state lines.

17 Internet Content Rating Association An independent international body that provides a framework for labelling sites or individual pages systematically with labels that describe the nature of the content under such categories as nudity and sexual content, bad language, violence, use of drugs and alcohol, and so on. An independent international body that provides a framework for labelling sites or individual pages systematically with labels that describe the nature of the content under such categories as nudity and sexual content, bad language, violence, use of drugs and alcohol, and so on. The content provider fills in a questionnaire. This is submitted to the ICRA site, which generates the label and sends it back so that the provider can paste it on to his site. The content provider fills in a questionnaire. This is submitted to the ICRA site, which generates the label and sends it back so that the provider can paste it on to his site. The ICRA provides filter software, which can be used to control which sites and pages can be accessed. A user can download and install this software and then configure it to allow access only to web pages and sites that satisfy particular labelling criteria. The ICRA provides filter software, which can be used to control which sites and pages can be accessed. A user can download and install this software and then configure it to allow access only to web pages and sites that satisfy particular labelling criteria. Concern about children and internet pornography in the USA tends to be concerned with the risk of children watching ‘unsuitable’ material rather than with pornographic material involving children. Concern about children and internet pornography in the USA tends to be concerned with the risk of children watching ‘unsuitable’ material rather than with pornographic material involving children.

18 Europe UK laws are the strictest in Europe except for Ireland. Some countries (Sweden, Denmark, Germany, for example) have no laws forbidding the publication or dissemination of sexual material as such, although they have laws forbidding the depiction of sexual violence and sexual activity involving children.

19 What can be done? The differences between countries make it impossible to obtain useful international agreement about internet pornography in general. The differences between countries make it impossible to obtain useful international agreement about internet pornography in general. There is however widespread international agreement about removing child pornography from the internet. There is however widespread international agreement about removing child pornography from the internet.

20 Child Pornography The UK Protection of Children Act 1978 makes it a serious offence merely to possess indecent material involving children. The UK Protection of Children Act 1978 makes it a serious offence merely to possess indecent material involving children. ‘indecent’ means ‘sexually explicit’, a more objective and less strict test than the test for obscenity. ‘indecent’ means ‘sexually explicit’, a more objective and less strict test than the test for obscenity. ‘children’ means persons below the age of consent but this can still cause problems of definition. The age of consent is 16 in the UK but only 12 in some European countries. ‘children’ means persons below the age of consent but this can still cause problems of definition. The age of consent is 16 in the UK but only 12 in some European countries. Tackled by identifying customers (typically through credit card numbers) and by blocking sites. Tackled by identifying customers (typically through credit card numbers) and by blocking sites.

21 Internet Watch Foundation UK industry body that acts against “websites, newsgroups and online groups that: UK industry body that acts against “websites, newsgroups and online groups that: –contain images of child abuse, originating anywhere in the world. –contain adult material that potentially breaches the Obscene Publications Act in the UK. –contain criminally racist material in the UK.” In practice, has largely been restricted to child pornography and to images. In practice, has largely been restricted to child pornography and to images. Operates a ‘hot line’ for public complaints. Operates a ‘hot line’ for public complaints. Receives about 20,000 complaints a year, of which about 30% relate to illegal material. Receives about 20,000 complaints a year, of which about 30% relate to illegal material. It passes justified complaints to the Police and to the ISP concerned. Only about 1% relate to material hosted in the UK. It passes justified complaints to the Police and to the ISP concerned. Only about 1% relate to material hosted in the UK.

22 Spam “unsolicited sent without the consent of the addressee and without any attempt at targeting recipients who are likely to be interested in its contents” Taken very seriously by the industry.

23 European Community Directive on Privacy and Electronic Communications (2002/58/EC) implemented in the UK by the Privacy and Electronic Communications (EC Directive) Regulations implemented in the UK by the Privacy and Electronic Communications (EC Directive) Regulations unsolicited can only be sent to individuals (as opposed to companies) if they have agreed; unsolicited can only be sent to individuals (as opposed to companies) if they have agreed; sending unsolicited that conceals the address of the sender or doesn’t provide a valid address to which the recipient can send a request for such mailings to stop is unlawful; sending unsolicited that conceals the address of the sender or doesn’t provide a valid address to which the recipient can send a request for such mailings to stop is unlawful; if an address has been obtained in the course of the sale of goods or services, the seller may use the address for direct mailings, provided that the recipient is given the opportunity, easily and free of charge, to request that such mailings cease. if an address has been obtained in the course of the sale of goods or services, the seller may use the address for direct mailings, provided that the recipient is given the opportunity, easily and free of charge, to request that such mailings cease.

24 Problem EU Directive can only be effective within the EU. EU Directive can only be effective within the EU. 90% of the spam received in the UK originates in the USA. 90% of the spam received in the UK originates in the USA.

25 The CAN SPAM Act 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act ) US Act that makes it legal to send spam provided that: the person sending the spam has not been informed by the receiver that he or she does not wish to receive spam from that source; and the person sending the spam has not been informed by the receiver that he or she does not wish to receive spam from that source; and the spam contains an address that the receiver can use to ask that no more spam be sent. the spam contains an address that the receiver can use to ask that no more spam be sent.

26 Technical fixes closing loopholes that enable spammers to use other people’s computers to relay bulk messages; closing loopholes that enable spammers to use other people’s computers to relay bulk messages; the use of machine learning and other techniques to identify suspicious features of message headers; the use of machine learning and other techniques to identify suspicious features of message headers; the use of virus detection software to reject e- mail carrying viruses; the use of virus detection software to reject e- mail carrying viruses; keeping ‘stop lists’ of sites that are known to send spam; keeping ‘stop lists’ of sites that are known to send spam; “Opt in” to adult sites in UK proposed “Opt in” to adult sites in UK proposed