Holocaust denial, hyperlinks and YouTube: Chabloz again.

Background

Alison Chabloz was convicted in 2018 at Westminster Magistrates’ Court of three offences contrary to s.127(1) of the Communications Act 2003, under which:

“A person is guilty of an offence if he—(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or (b) causes any such message or matter to be so sent.”

Two of the alleged offences related to a video on YouTube of her singing two songs, (((Survivors))) and Nemo’s Anti-Semitic Universe, to an audience in a central London hotel in September 2016: she had not uploaded the video herself but she did embed a hyperlink to the YouTube video in her blog. The third related to a video of her singing a song entitled I like the story as it is – SATIRE which she uploaded to YouTube in September 2017. On appeal, in R v Alison Chabloz [2019] Southwark Crown Court 13 February, the issue was whether or not the three songs were “grossly offensive” [2]. She lost, and we noted the case here.

She then sought to appeal by way of case stated; however, following a hearing in May concerned with how the matter should proceed, the judge refused to state a case and indicated that the proper course was for her to seek permission for judicial review of the written ruling. No such application was ever formally made, although written grounds for judicial review were produced in September 2019. In Chabloz v Crown Prosecution Service [2019] EWHC 3094 (Admin), Coulson LJ sets out the rather confusing procedural history of the case at [2]-[5].

The judgment

The judgment highlighted two earlier cases in particular. In DPP v Collins [2006] 1 WLR 2223, the defendant had telephoned his MP and spoke directly to him or members of his staff, or left messages on an answering machine, “referring to ethnic minorities in highly derogatory terms” [13]. Dismissing his appeal, the House of Lords had held that the purpose of s.127(1) was not to protect people against getting unsolicited messages but to prohibit the use of a service provided and funded by the public and for the benefit of the public to transmit communications that “contravened the basic standards of society” [14]. In Chambers v DPP [2013] 1 WLR 1833, the Court of Appeal had held that a tweet on Twitter suggesting that the defendant would blow up Teesside Airport was a message sent under s.127(1)(a), even if that 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, was still an offence” [16]. There were also later cases in a similar vein.

Coulson LJ (Cheema-Grubb J concurring) held that the question as to whether or not pasting a hyperlink could amount to causing an offensive message to be sent could be approached in three different ways, all of which led to the same conclusion: that, on the facts, the applicant was properly convicted under section 127(1)(b) [27].

Ms Chabloz had told those looking at her blog that she had performed the songs and that her performances had been uploaded onto YouTube and pasted the hyperlink to facilitate their access to those performances: “That was not in any sense a neutral footnote or a passive reference to something unconnected to her, but instead a direct signpost to the performance of her own songs. She was endeavouring to widen the distribution of her own material” [28]. As long as it remained on YouTube, the material was accessible via her blog [29] and the purpose of setting up the link had been to cause the material to be sent. Had she not gone on to YouTube, copied the hyperlink and pasted it into her blog page, it would not have been possible for others to access the material from that location [30].

Further:

“As Lord Bingham stated in Collins, the aim of section 21 is to protect the integrity of a public service and to prevent it being a means by which grossly offensive material may be enabled. That is precisely what the applicant was doing here…” [32].

Nor was posting the hyperlink a neutral act: she was telling people that there was a video of her singing her songs and providing them with the means to access them with one click. “That was an unequivocal endorsement of the material” [33].

The second argument was that a communication could not be made with or to an inanimate object, that sending the video to YouTube’s server had not constituted  “communication” and that there was no basis for a conviction under s.127(1)(a) [36].

That argument also failed:

  • there was nothing in the Act to support the proposition that the message had to be received by a human being in order for the offence to have occurred [37];
  • even if there did have to be an intended recipient, it was wholly unrealistic to suggest that the video uploaded to YouTube was, as counsel had argued, “a packet of data always intended for an inanimate object”: “it was no such thing: it was a video of a song performed by the applicant, uploaded to YouTube by the applicant, intended solely to be seen by other people” [38].
  • counsel’s contentions were contrary to the ruling in Collins that the offence was complete when the message was sent to the inanimate answer machine [39]; and
  • there was no reason to depart from either the reasoning or the result of the later cases, nor to distinguish between Twitter and YouTube [40].

The fact that the message in question had been sent to the YouTube bunker in California, “rather than, say, to the applicant’s next-door neighbour”, was irrelevant. The offence was made out when she downloaded the video to YouTube with the intention that people might view it [41].  Application refused [42].

[With thanks to Adam Wagner for alerting Twitterati to the judgment.]

Cite this article as: Frank Cranmer, "Holocaust denial, hyperlinks and YouTube: Chabloz again." in Law & Religion UK, 20 November 2019, https://lawandreligionuk.com/2019/11/20/holocaust-denial-hyperlinks-and-youtube-chabloz-again/

 

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