Information Note on the Court’s case-law No. 79
October 2005
Perrin v. the United Kingdom (dec.) - 5446/03
Decision 18.10.2005 [Section IV]
Article 10
Article 10-1
Freedom of expression
Conviction for publishing obscene material on a free preview page of a website: inadmissible
The applicant was convicted and sentenced to 30 months imprisonment for publishing a free preview page on a website which contained scenes of coprophilia, coprophagia and homosexual fellation. A police officer had previously accessed this page in the course of his duties, which led to the arrest of the applicant. The applicant stated in his interviews with the police that the internet site viewed by the officer was operated and controlled by a company based in the United States of America of which he was a majority shareholder. The applicant’s conviction fell under the Obscene Publications Act 1959, on grounds of having published an obscene article. The Court of Appeal dismissed the applicant’s appeal claiming that his conviction had breached Article 10. It found that the 1959 Act was sufficiently precise for the interference with the applicant’s freedom of expression to be considered as having been prescribed by law. It also found the interference proportional and justified.
Inadmissible under Article 10: The applicant’s conviction and sentence for publishing an obscene article had constituted an interference with his right to freedom of expression. As to whether the interference had been prescribed by law, the applicant maintained that the 1959 Act was not sufficiently foreseeable because the major steps towards publication had taken place in the United States, where the 1959 Act did not apply. However, the applicant was a resident of the United Kingdom and could not therefore argue that the laws of the United Kingdom were not reasonably accessible to him. Moreover, concerning the precision of the amended 1959 Act, the Act made it clear that it applied to the transmission of data that was stored electronically, and also clarified the definition of what material was “obscene”. Hence, the impugned interference was “prescribed by law” within the meaning of Article 10(2). It was not disputed that the legitimate aim of the interference had been to protect the morals and/or the rights of others. On the question of proportionality, the fact that the dissemination of the images in question may have been legal in other States, such as the United States, did not mean that in proscribing such dissemination within its own territory the respondent State had exceeded its margin of appreciation. Likewise, the fact that there were other means to protect against the harm of such material (such as parental control software packages, making the accessing of the sites illegal and requiring Internet Service Providers (“ISPs”) to block access) did not render it disproportionate for a Government to resort to criminal prosecution, particularly when other measures had not been shown to be more effective. As to the applicant’s further argument that websites were rarely accessed by accident and normally had to be sought out by the user, the web page in respect of which the applicant was convicted was freely available to anyone surfing the internet and could be sought out by young persons whom the national authorities were trying to protect. It would have been possible for the applicant to have avoided harm by ensuring that none of the photographs were available on the free preview page. In conclusion, the applicant’s criminal conviction could be regarded as having been necessary in a democratic society in the interests of the protection of morals and/or the rights of others. The length of the sentence imposed had not been disproportionate either: manifestly ill-founded.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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