PERRIN v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicant, Mr Stephane Laurent Perrin, is a French national, who was born in 1971 and lives in Hove, the United Kingdom. He was represented before the Court by J. Welch, a lawyer practising in London. On 25 October 1999 an officer with the Obscene Publications Unit of the Metropolitan Police used, in the course of his duties, a computer at a police station in the United Kingdom to access a web page which he found on the internet. When he viewed that page he saw people covered in faeces, coprophilia, coprophagia and men involved in fellatio. The page was in the form of a preview for other material that could be viewed on payment of a subscription. Anyone wanting more of that type of material could click on to a link marked “subscription to our best filthy sites.” The officer did that and provided his name, address, and credit card details. He was then given access to a second web page which contained similar material to the first. On 12 November 1999 the officer visited the web site again and viewed a third web page. The applicant was subsequently arrested and interviewed by police officers about his involvement in the publication of internet sites. He stated in his interviews with the police that the internet site viewed by the officer was operated and controlled by Metropole News Group, a company based in the United States of America that complied with all the local laws and of which the applicant was a majority shareholder. The applicant was charged with three counts of publishing an obscene article, contrary to section 2 of the Obscene Publications Act 1959 (“the 1959 Act”). The three counts related to the three respective web pages which the officer had viewed. The matter came for trial before Southwark Crown Court in October 2000. At the start, the applicant entered an admission, through his counsel, that he was legally responsible for the publication of the web pages viewed by the police officer. The issue for the jury was whether those pages were obscene within the meaning of section 2 of the 1959 Act. The trial judge directed them as to the definition of “obscene” provided by section 1(1) of the 1959 Act (see below). On 16 October 2000 the applicant was convicted on the first count, which related to the preview page, and acquitted him on the two other counts. On 6 November 2000 he was sentenced to thirty months imprisonment. The applicant sought leave to appeal to the Court of Appeal on the ground, inter alia, that his conviction violated Article 10 of the Convention. He submitted that it was an interference with his right to freedom of expression which was neither prescribed by law, nor proportionate. His main point was that the 1959 Act was not sufficiently foreseeable because the major steps towards publication of the web pages had taken place outside the jurisdiction: he maintained that English courts should only be able to convict when the major steps towards publication took place within their jurisdiction. He further submitted that section 2 of the 1959 Act was not sufficiently clear. As to proportionality, he pointed out that similar material was readily available on the internet and that there were better means of inhibiting access, such as industry self-regulation, blockage by service providers and steps taken at home. On 22 March 2002 the Court of Appeal dismissed his appeal against conviction. It relied on Handyside v. the United Kingdom (judgment of 7 December 1976, Series A no. 24, § 44) and Hoare v. the United Kingdom (no. 31211/96, Commission decision of 2 July 1997) in holding that section 2 of the 1959 Act was sufficiently precise for the interference in question to be prescribed by law. In regard to proportionality, it reviewed the Convention case law and observed that there was a margin of appreciation in relation to judgments about morality. It held that the interference with the applicant’s freedom of expression was limited in that he was only convicted on the first count. It considered that, even if the 1959 Act only provided limited protection to vulnerable people, there is no reason why a responsible government should abandon that protection in favour of the limited remedies advocated by the applicant. Finally, it noted, on the jurisdictional point, that the applicant’s suggestion, that conviction should only be possible where major steps had been taken towards publication in a place over which the court had jurisdiction, would undermine the aim that the law was intended to protect by encouraging publishers to take the steps towards publication in countries where they were unlikely to be prosecuted. It concluded that the interference in question was justified under Article 10 § 2. His appeal against sentence was also dismissed, the Court of Appeal finding as follows: “It is pointed out that this was material that had to be sought out. That, of course, is true. As [counsel for the applicant] accepts, it was available to the young but they had to seek it. On the other hand, it is precisely the sort of material which some young would seek in the privacy of their own bedrooms and it is they who have to be protected, so far as is possible, by the law. There is, as [counsel for the applicant] submits, difficulty with the worldwide web, but it is through the worldwide web that people are able to make very substantial profits.... Finally, it is submitted that, if one looks at the authorities, sentences passed in relation to other offences were not of this magnitude, at any rate where the offence was not, on the face of it, relating to child pornography. That is true so far as it goes, but again the danger in relation to this type of offence was its accessibility to the young and vulnerable. In those circumstances it seems to us that, bearing in mind the statutory maximum of three years, the judge adopted the right approach in this case, and we see no reason to interfere with the sentence which he imposed.” On 30 October 2002 the House of Lords refused the applicant leave to appeal. The 1959 Act (as amended by the Obscene Publications Act 1964, the Criminal Law Act 1977, the Cinema Act 1985, the Broadcasting Act 1990 and the Criminal Justice and Public Order Act 1994) provides in so far as relevant: “1. Test of obscenity (1) For the purposes of this Act an article shall be deemed to be obscene if its effect or (where the article comprises two or more distinct items) the effect of any one of its items is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. (2) In this Act “article” means any description of article containing or embodying matter to be read or looked at or both, any sound record, and any film or other record of a picture or pictures. (3) For the purposes of this Act a person publishes an article who – (a) distributes, circulates, sells, lets on hire, gives, or lends it, or who offers it for sale or for letting on hire; or (b) in the case of an article containing or embodying matter to be looked at or a record, shows, plays or projects it, or, where the matter is data stored electronically, transmits that data.... 2. Prohibition of publication of obscene matter (1) Subject as hereinafter provided, any person who, whether for gain or not publishes an obscene article or who has an obscene article for publication for gain (whether gain to himself or to another) shall be liable – (a) ... (b) on conviction on indictment to a fine or to imprisonment for a term not exceeding three years or both ... 4. Defence of public good (1) Subject to subsection (1A) of this section [which is concerned with moving picture films or soundtracks] a person shall not be convicted of an offence against section two of this Act, and an order for the forfeiture shall not be made under the foregoing section, if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science, literature, art or learning, or of other objects of general concern.”