Thursday, January 12, 2006

Being Annoying on the Internet to Be a Crime?

The blogoverse has lately been full of the shocking news that President Bush has passed into law a provision, tucked into the Violence Against Women and Department of Justice Reauthorization Act of 2005, which in essence, makes it illegal to annoy someone on the Internet, if you do so without disclosing your true identity.

Since many blogger's (and blog-reader's) days are spent mainly achieving this very aim, and often under a pseudonym or under cloak of anonymity, the unrest such a law has incited among the lieges becomes understandable. Some blog sites, such as Blogspot, leave it open to users to use either their true name or a pseudonym (or no name at all) when commenting; others, such as Live Journal, actively encourage uses to conmment only sub pseudonym (although it should be noted that comments made anonymously, can also, on various blog sites, be banned). In the US, anonymity for political (though not other) purposes has a degree of constitutional protection ( McIntyre v. Ohio Election Commission ) and so the fredom of speech mavens are up in arms.

More recent reports have suggested however that (a) this is in fact not a new law at all, but merely an amendment of existing US law relating to "annoying" ie nuisance telephone calls, and (b) that even the amended law continues as before to exclude "interactive computer devices" though it does include calls made at least partially via the Internet. It seems possible therefore that the new law merely extends the old nuisance phone calling prohibition to calls made via IM and VOIP, and is not intended to extend to email, Internet web and Usenet posts at all. The point is also well made that incidental annoyance caused by irate posters, is not at all the same as criminally intending to cause annoyance.

What interests me, though, is that in the UK, as usual, we have on the whole collectively patted ourselves on the back and said "Mad Americans, it culdn't happen here." But in fact, it already has.

The (UK wide) Communications Act 2003, s 127 ("Improper use of public electronic communications network") holds that:

(1) 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.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another [emphasis added], he-

(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.

So it would appear that, say , the persistently "annoying" commentor on Blogger - a spammer, for example, or perhaps just a particularly brusque or longwinded repeat correspondent - could hypothetically be charged under s 127. Subsection (2)(c) does not appear to require that the "message" be false; nor (as with the US law) is there even the need for anonymity.

And yet no one here makes a fuss about the non-constitutionality of it all. Such a criminal provision has existed since at least 1984 under our old Telecommunications Act, to deal with, surprise, nuisance/crank/malicious phone calls. It was quietly extended to the Internet in the 2003 Act (wherein the definition of a "public telecommunications network" can be found) and even more quietly, has anecdotally been used by the police on occasion since to charge Denial of Service, in the absence of clear guidance as to whether s 3 of the Computer Misuse Act 1990 would cover that crime. (see Blogscript, elsewhere).

Should repeat emails or web posts be criminal simply because they are annoying, inconvenient or anxiety-provoking but not false, malicious or libellous? If they contain threats, they will in any case be chargeable as assault; if they are falseand relate to a living person, they wil often be pursuable as libels. With phone calls it is clear that repeated nuisance calls have a deleterious psychological effect on the victim. But web posts can be ignored, software exists to ban named posters from commenting on many sites, and email can be similarly filtered. Unusual though it is, in a world where we usually try to draft convergence-neutral laws, freedom of speech does seem to demand a different balance for net communications than it does with conventional telephone calls. Perhaps the 2003 Act, s 127 should be reviewed?

1 comment:

Anonymous said...

Not quite to the point: but I'm interested to note that, under the Communications Act 2003, sending an "indecent or obscene" message (which could be anything from a saucy love-note or lewdly promising text message to thousands of words of pornography, not to mention any non-textual content) is an offence.

Coo, I feel like a criminal now.