ALISON CHABLOZ

Appellant

- v-

REGINA

Respondent

PRELIMINARY RULING

1. Alison Chabloz [“the appellant”] appeals against her conviction on 25 th

May 2018 at the City of Westminster Magistrates’ Court [D J Zani] of three
offences contrary to section 127 of the Communications Act 2003 [“the
Act”].

2. Two of the offences [to which I will refer as “Charges 1 & 2”] relate to a
video of the appellant singing two songs [entitled “Nemo’s Anti-Semitic
Universe” and “(((Survivors)))”] to an audience at a gathering in a central
London hotel in September 2016. A video of her performance was
subsequently uploaded to YouTube. The appellant was not responsible for
that uploading, but she caused to be embedded in her Blog site
[www.tellmemorelies.wordpress.com] a hyperlink, which when clicked upon
would take the person visiting that page to the YouTube video.

3. The third offence [to which I will refer as “Charge 3”] relates to a video of
the appellant singing a song entitled “I like the story as it is – SATIRE”. That
performance was not to an audience, and it was the appellant herself who
uploaded it to YouTube, in September 2017.

4. The three songs to which the charges relate are each alleged by the
respondent to be grossly offensive, within the meaning of the Act, by
reference to their lyrics and in the case of one song, to its musical style as
well.

5. There is absolutely no dispute that the appellant sang each of the three
songs and either uploaded the video in question herself to YouTube
[Charge 3] or provided a hyperlink to it [Charges 1 & 2]. Indeed the key

1
 evidence upon which the appellant here relies is set out in the form of
written Agreed Facts.

6. Mr Davies on behalf of the appellant submits that the conduct in which the
appellant admittedly engaged in relation to each video cannot as a matter
of law be said to amount either to causing the material in question to be
sent [as alleged in Charges 1 & 2} or actually sending it [as alleged in
Charge 3].

7. What Mr Davies advances is in reality a submission of no case, which in the

normal way would be considered at the close of the respondent’s case.
However given that there is no dispute as to the evidence in question, it is
convenient for the matter to be dealt with at this preliminary stage of the
hearing of the appeal.

8. I have been greatly assisted by the written submissions on behalf of both

parties, and I reiterate the gratitude I have already expressed both to Mr
Davies and Mr Mulholland QC, who appears for the respondent, for their
lucid and attractive oral submissions.

9. So far as Charges 1 and 2 are concerned, Mr Davies submits that the act of
embedding a hyperlink on a blog page cannot amount to causing the
video to which that hyperlink directs the viewer [provided he clicks upon it]
to be sent.

10.He submits that in this scenario the allegedly grossly offensive messages
[i.e. the songs in the video] are “sent” by YouTube, and “caused to be sent”
only by the Blog viewer who clicks on the hyperlink.

11.I reject that submission. It seems to me that the ordinary principles of

criminal liability apply. As Mr Mulholland QC pointed out in argument, a
person may culpably “cause” an event or circumstance [for example a road
traffic fatality] without her actions being the sole or even principal cause of
it: all that is required is that her contribution is more than de minimis. Nor
need the contributions of others involve criminal liability on their part. It is
perfectly possible for two or more people to play different and more than
minimal parts in causing material to be sent for the purposes of section
127. Here there is evidence that at least one person, namely the
respondent’s witness Stephen Silverman, visited the appellant’s Blog and
clicked the hyperlink to the video. In my judgment the appellant’s actions

2
 in placing that hyperlink on her Blog site made more than a minimal
contribution to the sending of the material in question.

12.That being so it is unnecessary for me to decide whether, as Mr

Mulholland submits, by reference to the provisions of another statue, the
Malicious Communications Act 1988, “sending” should, so far as the Act is
concerned, be construed as including the concepts of delivery and
transmission.

13.I turn finally, so far as Charges 1 & 2 are concerned, to the further
submission made by Mr Davies, couched with reference to the provisions
of a third statute, the Terrorism Act 2006, that as a matter of law section
127 of the Act cannot have criminalised what he characterises as the mere
facilitation of the sending of a message or other matter. He argues that the
way in which section 2 of that Act is couched shows that when Parliament
wants to criminalise mere facilitators, it does so clearly and
unambiguously. I reject this submission.

14.Firstly, a person whose actions are a more than de minimis cause of a

relevant act or circumstance does more than “merely facilitate it”.
Secondly, I simply cannot see that the respective provisions of sub-
sections (d) and (e) of section 2 of the Terrorism Act 2006 have either the
meaning or the implication contended for. Sub-section (d), which refers to
the provision of services, appear to be aimed mainly [if not exclusively] at
the non-electronic dissemination of terrorist material. Sub-section (e) deals
exclusively with electronic publication, and refers only to “transmission”:
Neither sub-section contains any reference to “facilitation” let alone to
hyperlinks. In any event the section has no application to anything other
than terrorist publications.

15.The effect of Mr Davies’ submissions, as he was driven to concede, would

be that a person who placed grossly offensive material directly onto a
webpage or tweet would be guilty of an offence under section 127, but
would escape conviction if he merely posted a hyperlink to the material.

16.That as it seems to me would be both an absurd and an unjust outcome,

which cannot possibly represent the intention of Parliament. I entirely
accept Mr Davies’ submission that any ambiguity in a penal statute should
be resolved in favour of an accused. However properly analysed,
particularly in the light of the decision of the House of Lords in DPP v

3
 Collins, the provisions of section 127 are not ambiguous at all. It should be
borne in mind that the digital world is a rapidly-evolving one. The courts
should in those circumstances refrain from adopting an overly technical or
proscriptive approach to statutory interpretation where offences in relation
to digital communications are concerned.

17. So far as Charge 3 is concerned, Mr Davies can scarcely dispute that the
appellant “sent” the video containing the song of complained of when she
uploaded it to YouTube. However he submits that for the Act to bite, there
must be a sending, or at least an intended sending, to a person or persons.
That did not occur here, he suggests: rather the sending was to an
inanimate object, namely a YouTube server in California.

18.Doughtily advanced though this submission was, I have no difficulty in

rejecting it entirely. The appellant’s position in relation to Charge 3 is
analogous to that of the respondent in DPP v Collins. He left messages on
a telephone answering machine, which might fairly be described as an
inanimate object. His object in so doing was that somebody would use the
answering machine and play the messages back. The House of Lords
found that the messages were grossly offensive, and that the completed
offence contrary to section 127 of the Act was made out as soon as they
were left on the answering machine: whether or not anybody actually ever
heard the messages was irrelevant.

19.I emphasise that this ruling, which is mine alone, is confined to matters of
law. It does not bear on the matters of fact which are in issue in the appeal.
These are firstly whether any of the songs in question can be proved to be
grossly offensive, within the meaning of the Act, and secondly whether the
appellant can be proved to have had, in relation to any charge, the
necessary mens rea [as to which see DPP v Collins at paras 10-11]. I will
decide those matters together with my lay colleague, when we sit together
as the tribunal of fact and consider the evidence, whether agreed or
disputed, advanced by both parties to the appeal.

HHJ Christopher Hehir

11th February 2019