The false promise

Changing legislation, Max Hill QC explains, is not the solution to preventing the spread of extremist content online.

During the Coroner’s Inquests into the London Bombings of 7 July 2005, there was a dispute concerning photographs and videos taken on board the Underground trains in which so many died or sustained serious injuries. For a 21st Century event, the unusual feature of 7/7 was that, with the exception of the Number 30 bus which was bombed in Tavistock Square, the atrocities occurred underground. Therefore, the outside world did not see images of the awful carnage beneath our streets.

When it came to the public Inquests four years later, media representatives understandably assumed that they would be able to publish whatever images were viewed by the Coroner. A 2005 Protocol between the DPP, Chief Police Officers and the Media companies worked on the assumption that material once seen in court could be seen by all.

The Protocol includes the following:

The aim of the CPS is to ensure that the principle of open justice is maintained – that justice is done and seen to be done – while at the same time balancing the rights of defendants to a fair trial with any likely consequences for victims or their families and witnesses occasioned by the release of prosecution material to the media.

Not so in this important aspect of the 7/7 Inquests. There was lengthy and principled argument on all sides, citing decided cases all the way back to Scott v Scott in 1913, in which Lord Diplock said:

‘As a general rule the English system of administering justice does require that it be done in public’ [Scott v Scott [1913] AC 417].

The Coroner, Lady Justice Hallett, decided that stills and video footage of the Underground trains in the tunnels would be seen by all participants in the Inquests who needed to do so, but that there would not be wider distribution.

Why? The point is that publicising these images would unquestionably have fuelled the propaganda fire then being fanned by Al Qaeda, and subsequently by Daesh or so-called Islamic State. Every time there is a terrorist event worldwide, images of the event rapidly become the wallpaper of fear which is used to terrorise the majority, and worse, to radicalise the few who may be warped enough to become inspired to emulate what has gone before.

Where these awful crimes are facilitated by the use of social media or the Internet, we want to close down the criminals’ ability to communicate. And yet, we must recognise that doing so comes at a very high price if it interferes with the freedom of communication every citizen enjoys, and which is also enshrined in Article 10 of the European Convention on Human Rights.

Let us go straight to the limiting provision within Article 10, remembering that freedom of expression is not a fundamental right. Article 10(2) reads:

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime’ etc etc.

So, have we reached the point at which we need to legislate for further interference with Article 10?

Before we can answer that question, we should remember that statute already interferes with Article 10, where necessary and proportionate. Consider section 2 of the Terrorism Act 2006, the criminal offence of disseminating terrorist publications.

What is a terrorist publication? It is defined in section 2(3),

if matter contained is likely…(a) to be understood as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism (CPI), or (b) to be (so) useful, and to be understood by some or all as…wholly or mainly for the purpose of being so useful…

A person commits the offence by (section 2(2)) distributing or circulating such a publication, which includes (section 2(2)(e)) transmitting the contents electronically, and when he or she (section 2(1)(b and c)) intends an effect of the conduct to be a direct or indirect encouragement for CPI, or when he intends to provide assistance in CPI.

One of the significant decided cases in this area (which I prosecuted myself) was R v Faraz, tried at Kingston Crown Court in 2011 and reviewed on appeal in [2013] 1 CrAppR 29. At trial, Section 2 was ‘read down’ for compatibility with Article 10 in a number of ways, and the Court of Appeal later held that it was not arguable that a publication that to the knowledge of the defendant carried a real risk that it would be understood by a significant number of readers as encouraging terrorist offences was entitled to exemption because of Article 10, just because it expressed political or religious views.

Therefore, through laws already on the statute book, it is both possible and compatible with ECHR for investigators and prosecutors to reach into social media and the Internet for material which can properly be brought before the court.

The question is, can we legislate further to rid ourselves of online terrorism? We should look hard to see whether any amendments might hone existing offences given recent technological advances. But apart from that, further legislation does not strike me as the answer. Criminalisation, and likely alienation of tech companies who are there to serve us and to help us – albeit for colossal financial reward on their part – cannot be the answer.

And I finish, if I may, in the technical arena which I know least but am willing to learn. Is quantum computing part of the answer? I first heard the term only recently. Could it hold the answer to breaking algorithms? What should we be doing towards the sharing of encryption keys? Can network providers enforce encryption and validation as precursors to content being published? And if these things are technically possible, by whom and when should this power be used? The future will be very interesting.