The internet and the draft Terrorism Bill

All of the proposals have been criticised by civil rights groups – not least the Government’s own terror law watchdog, Lord Carlile of Berriew QC, who yesterday published his own report about the draft bill.

But Lord Carlile was generally approving of those parts of the bill that could affect website owners and ISPs, finding that the rules relating to the encouragement or glorification of terrorism were on the whole “proportional and a sensible part of the legal armoury”.

What the proposals state

Firstly, under the draft bill, an individual will commit an offence, punishable by a fine or up to seven years in prison, if:

(a) he publishes a statement or causes another to publish a statement on his behalf; and

(b) at the time he does so –

(i) he knows or believes, or

(ii) he has reasonable grounds for believing, that members of the public to whom the statement is or is to be published are likely to understand it as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences.

The draft Bill defines statements likely to be understood as encouraging terrorist acts as statements that glorify the “commission or preparation (whether in the past, in the future or generally) of such acts or offences,” and those from which the public could be reasonably expected to infer “that what is being glorified is being glorified as conduct that should be emulated in existing circumstances.”

An individual charged with this offence will have a defence if he can show:

• that he published the statement in respect of which he is charged, or caused it to be published, only in the course of the provision or use by him of a service provided electronically;
• that the statement neither expressed his views nor had his endorsement; and
• that it was clear, in all the circumstances, that it did not express his views and (apart from the possibility of his having been given and failed to comply with a take down notice) did not have his endorsement.

Secondly, the draft bill targets the dissemination of terrorist publications. Under the proposals a person will commit an offence, punishable by a fine or seven years in prison, if he distributes, circulates, gives, sells, lends, offers, transmits electronically or provides a service allowing others to access or obtain a terrorist publication.

Even holding such a publication in his possession with a view to providing it to others is a criminal act.

The draft bill defines a terrorist publication as one that contains matter that constitutes:

• a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism (which depends on how the publication is likely to be understood by those who are likely to access it); or
• information of assistance in the commission or preparation of such acts. (The information has to be capable of being useful for those purposes, and to be understood by those likely to access it as being included in the publication because it was useful).

A person will have a defence to a charge of disseminating a terrorist publication if he can show that he had not examined the publication, had no reasonable grounds for suspecting that it was a terrorist publication and that he did not endorse it.

Where the material has been provided electronically, a person will have a defence if he can show:

• that he engaged in that conduct only in the course of, or in connection with, the provision or use by him of a service provided electronically;
• that the publication to which the conduct related, so far as it was a terrorist publication, neither expressed his views nor had his endorsement;
• that it was clear in all the circumstances that the publication, so far as it contained such matter, did not express his views and (apart from the possibility of his having been given and failed to comply with a take down notice) did not have his endorsement; and
• that the conduct in relation to that publication, so far as it was a terrorist publication, was not intended by him to provide or make available assistance to any person in the commission or preparation of acts of terrorism.

About internet activity

The draft bill details how the legislation will apply to statements published in the course of the provision or use of a service provided electronically. In general terms it sets out a notification system by which a “constable” will notify an ISP or other relevant party of offending material.

If the material is not taken down or modified after a two-day period, the material will be deemed to have the endorsement of the person notified – unless that person can provide a reasonable excuse.

If that person complies with the notice, but then publishes, or causes to be published, a statement that is in effect a repeat statement, that person will be deemed to have endorsed it.

He will, however, have a defence if he can show that he:

• has, before that time, taken every step he reasonably could to prevent a repeat statement from becoming available to the public and to ascertain whether it does; and
• was, at that time, not aware of the publication of the repeat statement; or having become aware of its publication, has taken every step that he reasonably could to modify or take down the repeat statement.

Responses to the proposals

Lord Carlile's report, 'Proposals by Her Majesty's Government for Changes to the Laws Against Terrorism,' generally upholds the Government’s proposals.

He praises the Government for changing its initial proposals on the glorification of terrorism, and welcomes the defence that will excuse “innocent publication on the internet" which, says Lord Carlile, “in this context is extremely difficult for internet service providers and chat room sites to control.”

With regard to the first offence of encouraging terrorism, he finds that “The balance between the greater public good and the limitation on the freedom to publish is no more offended by this proposal than it would be by, say, an instruction manual for credit card fraud were such to be published. I believe that it is Human Rights Act compatible.”

With regard to the second offence of disseminating terrorist publications, and its application to the internet, Lord Carlile considers the argument that it will create too great a restriction on the right of free speech, but rejects it.

However, Lord Carlile does express one concern: that academics, politicians and journalists might find themselves targeted by the legislation.

“It is important to ensure that genuine and sometimes useful research is not turned into a samizdat activity,” he warns. “The government should consider whether amendments might be needed to ensure that these categories of activity are not criminalised.”

Civil rights group Liberty said that the proposals were extremely broadly drafted and warned that they do not require any intention to incite others to commit criminal acts.