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"(4A) In subsection (1) references to the effect of a person's conduct in relation to a terrorist publication include references to an effect of the publication on one or more persons to whom it is or may become available as a consequence of that conduct."
Page 4, line 6, leave out from "intention" to end of line 7 and insert "specified in subsection (1)(a)"
The noble Lord said: My Lords, in moving Amendment No. 4, I shall speak also to Amendments Nos. 5, 6, 7, 8 and 10. This group of amendments applies to Clause 3, which deals with the dissemination of material by Internet service providers. The Internet is now, as all noble Lords will know, an extremely important method of transmitting information and opinions. The transmission by an Internet service provider could include the transmission of a terrorist publication. Internet service providers do not and in practice cannot monitor all the material that they transmit. Clause 3 contains a mechanism for giving notice to an Internet service provider if the authorities discover that the provider is transmitting what is called in the Bill "unlawfully terrorism-related" material. Notice is given by a constable if, in his opinion, the Internet service provider is transmitting such material. "Unlawfully terrorism-related" material is defined in subsection (7); I will return to that definition later.
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The notice to be served under Clause 3 requires the removal of the offending material within two working days. Non-compliance with the notice is not, in itself, an offence, but a non-compliant Internet service provider is treated as endorsing the material and, therefore, exposed to prosecution under Clause 1 or 2. An Internet service provider could, in theory, object to the notice and defend the prosecution on the grounds that the material was not, in fact, unlawful. However, the inevitable result in practice is that the Internet service provider will comply with the notice. That provider has no benefit from fighting the notice. If it does soor continues to transmit that material and then seeks to defend a prosecutionit faces costs, considerable time and expense from the court, and a possibility of conviction. Against that, it will get no benefit at all in practice from objecting to the notice. The obvious answer for any Internet service provider is simply to accept the notice and remove what is regarded as offensive material.
On Report, the noble Baroness, Lady Scotland, said that market forces would deal with that problem. Well, they will not; in fact, market forces make it obvious that Internet service providers will not contest any notice that is given to them. It is also extremely unlikely that whoever has authored the material that is being objected to will challenge the notice. They may well not know that it has even been blocked.
We believe that this gives rise to two big problems concerned with freedom of speech. It is convenient to speak to them together because, while they are quite different in nature, only by doing so does one get the full picture. The first relates to the Internet, which, as I have already said, is an extremely important method of communication. However, many authoritarian governments block unwanted material and take steps to ensure that such blocking is effective. That is notorious in, for example, Saudi Arabia, but particularly in China.
There has been much recent publicity in China about Google, which is setting up a new search engine for customers there. The Chinese authorities are insisting that it should not carry material which they do not want Google to carry for people there. For example, if in China you search for references to Falun Gong, you would only get extremely critical articles saying that that is a dreadful terrorist organisation. You would not get the other side of the story at all. Therefore, to allow the police to serve Clause 3 noticesin effect, to block transmissionswith no oversight and by any other authority, especially with no judicial control, is not acceptable. It may be acceptable to the Chinese or Russian authorities, but not here.
We believe that this is a real threat to freedom of speech, and Amendments Nos. 4, 5 and 10 would require judicial authority for the issue of the notice. The procedure that we envisage is something similar to that for the issue of an arrest warrant. No notice will be given to the Internet service provider, and the service of the notice will be delayed by a few hours24 hours, at most. The judge would, of course, have to satisfy himself or herself that there were indeed
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grounds for serving the notice. This will have a limited effect for obvious reasons, particularly for time, and we accept that there could be no hearing; but at least this step would prevent obvious abuses and would make the police think twice about whether the notice was really needed before they went to a judge to obtain authority to serve it.
The second problem, dealt with by Amendments Nos. 6, 7 and 8, is the extreme width of the definition of what is "unlawfully terrorism-related" in subsection (7). I shall read it to noble Lords to demonstrate its breadth. The subsection states:
"For the purposes of this section a statement or an article or record is unlawfully terrorism-related if it constitutes . . . something that is capable of being understood as a direct or indirect encouragement or other inducement to the commission, preparation or instigation of acts of terrorism or Convention offences".
I draw the attention of noble Lords to the words, "capable of being understood". All sorts of things are capable of being understood in all sorts of different ways by different people. Material may be capable of being understood in ways that are unexpected by anyone who creates or transmits certain material. Saying that that material is "unlawfully terrorism-related", simply because it may possibly be understood by some unknown person as encouraging terrorism, is way beyond anything that is reasonable.
Before anything that is being transmitted by an ISP is blocked, the police and the judge should be satisfied that that material is "likely to be" understood as encouraging or assisting terrorism. A Clause 1 offence is committed only if the published statement is "likely to be understood" as encouraging terrorism. That is on the face of the Bill. Similarly, in Clause 2(3) a publication is a terrorist publication only if it "likely to be understood" by persons to whom it is available as encouraging terrorism.
There is no justification whatever for applying a weaker test in Clause 3 for something that is unlawfully terrorism-related. Otherwise, we will end up in the absurd situation where the police can serve a notice under Clause 3 warning an Internet service provider to remove material from transmission, even though that material is not "likely to be understood" as encouraging terrorism, but merely that it is possible that it might be. It might be material that could legitimately be published or disseminated by its creator under Clauses 1 or 2. That is plainly wrong. The test for the notice under Clause 3 should be the same as the tests under Clauses 1 and 2.
The combination of those factorsthe absence of any oversight of the police's use of their powers under Clause 3 and the unreasonably wide meaning given to "unlawfully terrorism-related"means that Clause 3 as it stands is likelyI repeat, likelyto be a serious threat to freedom of communication. I have little doubt that those views will be shared by the courts.
Lord Kingsland: My Lords, in view of the scope and incisiveness of the analysis given by the noble Lord,
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Lord Goodhart, I can be extremely telegraphic. We share the noble Lord's concern about the threat to freedom of speech posed by the power of constables to issue Clause 3 notices. As the noble Lord rightly said, there is no incentive for an Internet service provider to challenge the notice. The only control contained in the Bill is the words,
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