Information Technology in UK Law

Judges, no less than any else, are well aware of and use modern technology in the course of their work. Modern technology, and means of communication, are advancing at an ever increasing speed. We are aware that reference to the internet is inculcated as a matter of habit into many members of the community, and no doubt that habit will grow. The revolution in methods of communication cannot change these essential principles.

Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process.

In any event, even if FAPL had to show that the communication was to a new public, I consider that it is clear that that requirement is satisfied, since the effect of FirstRow's activities is to make the broadcasts available to persons who are not legitimately entitled to view them either because those persons have not subscribed to the broadcaster's service or because the broadcaster has only been licensed by FAPL for a different territory.

Nothing elsewhere in domestic legislation leads, in my judgment, to a different conclusion. I accept Mr Saini's submission that the 2006 Act is the lex specialis in relation to Ofcom's duties as regards the radio spectrum. The limited powers for the Secretary of State to give directions to Ofcom contained in section 5 of the 2003 Act cannot hobble the wide power to give directions under section 5 of the 2006 Act.

The next question which arises is what is the ‘relevant information’ under section 3(1)(a) MCA 2005 on which the issue should be assessed? Although counsel in this case prepared an ‘agreed’ formula, I have had the benefit of wider argument on the issue in the two cases.

(3) The new paragraph 12 will: be using any computer, iPhone or mobile phone capable of accessing the internet, which computer, iPhone or mobile telephone does not have the capacity to retain and display the history of internet use; and from making any attempt to delete such history on such device; and from refusing to show such a history to a police officer if so requested.

In the present case we do not consider that any provision for monitoring the applicant's use of computers and the Internet can be justified. There is here no good reason to confer on the police any wider powers of search than are vested in them under the generally applicable law.