Pornography and the possible criminal liability of internet service providers under the obscene publication(s) and protection of children act

Abstract

This paper examines potential criminal liability of Internet Service Providers (ISPs) in England and Wales, under the Obscene Publication(s) Acts 1959 and 1965 and Protection of Children Act 1978. Commentators seek to distance commercial intermediaries by arguing that they are carriers not publishers of pornographic material. It is argued in this paper that this polarization creates an inaccurate picture of potential criminal liability. The term ‘carrier’ does not appear in either act and it is necessary to look for words that may have an equivalent meaning. In addition, recent statutory amendments to the primary legislation and judicial decisions have resulted in the pragmatic extension of the meaning of relevant terms. Even if potential criminal offences are identified there is also the overlooked problem of against whom and in what capacity the allegation can be brought.