Chabloz v Crown Prosecution Service

Under section 127(1) of the Communications Act 2003, the offence is complete when the proscribed message or matter is sent, or caused to be sent, through a public electronic communications network. Receipt by a human being is unnecessary.

A person who places a hyperlink to their own grossly offensive material may cause that material to be sent where the link creates a direct means of access and the surrounding context shows endorsement rather than a neutral reference. Uploading material to an online platform may constitute sending it, even where the immediate recipient is a server or other inanimate object.

The applicant was convicted at Westminster Magistrates’ Court of three offences under section 127(1)(a) and (b) of the Communications Act 2003. Her appeal to Southwark Crown Court was dismissed on 13 February 2019.

After procedural confusion concerning an appeal by way of case stated, the Divisional Court treated the matter as an application for judicial review in accordance with Sunworld Limited v Hammersmith and Fulham LBC [2000] 1 WLR 2102. The issues were whether hyperlinks to the applicant’s own videos caused offensive material to be sent, and whether uploading a video to YouTube constituted communication where the immediate destination was a server.

1. The application for judicial review was refused. The court accepted that the written ruling of the Crown Court could be challenged by judicial review and proceeded to determine the substantive issues.

2. Section 127(1) of the Communications Act 2003 focuses on the sending, or causing the sending, of proscribed material through a public electronic communications network. Following Director of Public Prosecutions v Collins [2006] 1 WLR 2223 and Chambers v DPP [2013] 1 WLR 1833, the offence is complete when the message is sent. It is immaterial whether anyone accesses it or whether it is received by a human being.

3. The applicant caused the messages in the first two charges to be sent. The hyperlink was not a neutral footnote. It was a direct link to performances of her own songs, placed on her blog to widen their distribution. She created the process by which the video could be accessed and thereby caused the material to be sent.

4. The court treated the hyperlink authorities as turning on the connection between the person posting the link and the underlying material, including whether the material was endorsed. On the facts, the applicant’s identification of her own performances and provision of immediate access amounted to unequivocal endorsement.

5. The argument concerning the YouTube server also failed. The Act does not require receipt by a human being. In any event, the video was intended to be viewed by people, and the use of YouTube as the communication platform did not alter the analysis. The offence under section 127(1)(a) was made out when the applicant uploaded the video with the intention that people might view it.

• Southwark Crown Court: dismissed the applicant’s appeal against her convictions on 13 February 2019.
• High Court (Administrative Court): treated the proceedings as an application for judicial review and refused the application.