Commentary on Sections Schedule 8: Disclosing private sexual photographs or films: providers of information society services
341.Schedule 8 addresses the position of providers of information society services in respect of the new offence under section 33.
342.Paragraph 1 of the new Schedule extends liability to a service provider established in England and Wales (an “E&W service provider”) in respect of a photograph or film which is disclosed in a European Economic Area state other than the UK.
343.Sub-paragraph (2) of paragraph 1 makes clear that section 33 applies to an E&W service provider who discloses a photograph or film in the course of providing information society services in a European Economic Area state that is not the UK.
344.Sub-paragraph (3) of paragraph 1 provides for proceedings in respect of an offence under section 33 to be dealt with in any place in England and Wales as if it had been committed in that place.
345.Paragraph 2 of the new Schedule restricts when proceedings may be instituted against a service provider established in a European Economic Area state other than the United Kingdom (a “non-UK service provider”).
346.Sub-paragraphs (2) to (4) of paragraph 2 set out the derogation conditions that must be satisfied for proceedings against a non-UK service provider to be instituted. These are where proceedings are necessary for the purposes of the pursuit of public policy, an information society service prejudices or presents a serious or grave risk of prejudice to the pursuit of public policy and is proportionate to the pursuit of public policy.
347.Paragraph 3 of the new Schedule sets out exceptions for mere conduits.
348.Sub-paragraphs (1) to (3) of paragraph 3 set out when a service provider is not capable of being guilty of an offence under section 33. The circumstances are where the information society service provided consists of the provision of access to a communication network or the transmission in a communication network of information provided by a recipient of the service. In such circumstances the service provider is not capable of being guilty of an offence if it does not initiate the transmission, select the recipient of the transmission or select or modify the information contained in the transmission.
349.Sub-paragraph (4) of paragraph 3 sets out that if a service provider stores the information for longer than is reasonably necessary for the transmission it is capable of being guilty of an offence.
350.Paragraph 4 of the new Schedule sets out exceptions for caching.
351.Sub-paragraph (1) of paragraph 4 sets out that paragraph 4 applies where an information society service consists of the transmission in a communication network of information provided by a recipient of the service.
352.Sub-paragraphs (2) to (4) of paragraph 4 set out the circumstances in which a service provider is not capable of being guilty of an offence under section 33 in respect of the automatic, intermediate and temporary storing of information. The circumstances are where: the storage of information is solely for the purpose of making more efficient the onward transmission of information to other recipients of the service at their request; and the service provider does not modify the information, complies with any conditions attached to having access to the information and expeditiously removes the information or disables access to it. The service provider should expeditiously remove the information where it obtains actual knowledge that the information at the initial source of the transmission has been removed from the network, access to the information has been disabled or a court or administrative authority has ordered its removal or disablement.
353.Paragraph 5 of the new Schedule sets out an exception for hosting.
354.Sub-paragraphs (1) to (4) of paragraph 5 set out the circumstances in which a service provider is not guilty of an offence under section 33 where in the course of providing an information society service it stores information provided by a recipient of the service. These circumstances apply where the recipient of the service is not acting under the authority or control of the service provider. The service provider must have no actual knowledge when the information was provided that it consisted of or included a private sexual photograph or film, that it was provided without the consent of an individual who appears in the photograph or film, or that the disclosure of the photograph or film was with the intention of causing distress to that individual. The service provider must, on obtaining such knowledge, expeditiously remove the information or disable access to it.
355.Paragraph 6 of the new Schedule defines “disclose”, “photograph or film”, “recipient”, “information society services”, “service provider”, and when a service provider is established in England and Wales or a European Economic Area state.