The Convergence
Monday, June 16, 1997

Naughty, Naughty, Nottingham

Legal threats from embarrassed British bureaucrats
force Canadian to take controversial report offline

by David Jones, dxj@theconvergence.com

Can governments use claims of copyright infringement as a tool to keep embarrassing documents from the public? Can British court orders be enforced in Canada? Is a hyperlink a publication?

Those are just a few of the complex -- and sometimes bizarre -- legal and jurisdictional issues that have surfaced in a growing online battle over a government document kept secret for 7 years, until it was published on the Net by 3 British journalists, and an increasing number of mirror sites.

The Devil's in the Details

The "JET Report" summarizes the findings of a Joint Enquiry Team commissioned by the County Council of Nottinghamshire, England, to investigate allegations of Satanic ritual abuse of children, in the aftermath of what became known as the 1988 Broxtowe case, in which 10 adults were charged with sexually assaulting 21 children of their extended families.

Although the police investigation led to a successful prosecution, the social services department wasn't satisfied.

With their minds infected by the 1980's hysteria that clandestine Satanists were molesting and murdering children, social services workers urged investigators to "suspend disbelief" and ignore "common sense" when young children started reporting they were victims of witchcraft and ritual abuse, such as: "Babies being thrown on the bonfire"; "the family having dead babies hung around their necks"; "babies being cooked in the oven" and "dragons and monsters" killing babies. Some children even reported that they themselves were "killed and magicked better".

After two years of growing controversy, the Joint Enquiry Team was asked to figure out what was going on.

The JET report concluded in 1990 that "there is no evidence of Satanic ritual abuse in the Broxtowe case". The whole situation might actually have been "created by social workers as a result of their own therapeutic methods" with "children being encouraged to believe in and to allege bizarre abuse".

The JET report recommended that use of information about Satanic ritual abuse and witchcraft by social workers should be "stopped immediately in the absence of any empirical evidence to support it. Presentations using this material, which in our view has no validity, should also cease immediately as it is contagious."

Hall of Mirrors

But Nottinghamshire County Council suppressed the report and ignored its recommendations -- leaving social workers free to promote their mistaken and misleading views through the media, and through profitable seminars and conferences.

Journalists Nick Anning, David Hebditch and Margaret Jervis, thought suppression of the report contributed to later cases in which false allegations of Satanism caused considerable harm.

So on May 30, 1997, with the blessing of one of the authors, John Gwatkin, they published the report on the Net.

Within days, the Nottinghamshire County Council obtained a preliminary injunction, dated June 3rd, ordering the report offline.

But it was already too late. The information was already being mirrored on web sites in Belgium, Germany, and the United States.

On June 5th, Jeremy Freeman, a 21-year-old student, jumped on the bandwagon with his mirror site located in Penticton, British Columbia.

The next day, Jeremy received email from C.P. McKay, County Solicitor for Nottinghamshire. With accusations of copyright infringement and the suggestion he was in contempt of a court order, Jeremy was given notice that he had to remove the report "within 24 hours" or else the matter would be taken to court.

Not keen on getting a possibly expensive lesson in the finer points of international copyright law, Jeremy complied and replaced his copy of the report with a link to one of the other mirror sites.

On June 7th, he got another email, this time claiming that by his hyperlink he was still, in effect, publishing the report and infringing copyright. If the link wasn't removed "forthwith", court proceedings would be initiated "without further notice".

In a form of "uncivil obedience", Jeremy complied, but sounded the alarm. In the days that have followed, his story has caught the imagination of several reporters, including HotWired and c|net.

Nottingham, your secret's out.

Hollow threats

Peter Junger, a law professor at Case Western Reserve University in Ohio, teaches a course on Computers and the Law. He too mirrored the JET Report, and he too received nasty email from Nottingham.

"It's a hollow threat", he says, explaining that British copyright doesn't apply outside Britain. "The Berne Convention only allows Nottingham to enforce copyright in Canada under the Canadian Copyright Act."

"They have no legal standing to force me or Jeremy to do anything -- especially when it comes to links", he says. "They're just blowing smoke."

"They're not just asserting copyright", he explains, "they're trying to keep the contents, the information, from the public. Even if they sue me for infringing their copyright, they'd have difficulty showing any 'damages' because they're not publishing it, they're not selling it -- they're suppressing it."

During a telephone interview it became clear that pondering new legal issues raised by the Internet provides no end of delight for Peter Junger, who graduated from Harvard Law school almost 40 years ago.

"I'm considering taking legal action against Nottingham", muses Junger, who says that bullying Jeremy to remove the link to Junger's copy of the report may be an infringement on Junger's free speech rights.

Through the Looking Glass

The immediacy and worldwide scope of publication on the Internet means that it is increasingly difficult for governments to keep secrets from the public.

How many Ottawa bureaucrats think this sounds like a good thing?

Memo to Canada's Minister of Foreign Affairs, Lloyd Axworthy -- When a government representative in a foreign country, wrongfully and without lawful authority, uses threats and intimidation to compel a Canadian to abstain from doing something that he has the lawful right to do, ... exactly whose side are you on?

It might be awkward for the Canadian government to argue vigourously that the Brits should back off because Jeremy Freeman's publication of the controversial report is justified as 'fair use, in the public interest'.

They might find their own words returning to haunt them the next time someone reveals one of their own dirty little secrets.

David Jones is a computer science professor at McMaster University,
and president of Electronic Frontier Canada.

Copyright © 1997 by David Jones. All Rights Reserved. Reprinted with permission.