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Don't threaten legal action.

Interesting. In the UK your legal action is far more likely to succeed if you've given the respondent clear notice that unless they address the situation you will take legal action.

See https://www.justice.gov.uk/cou... for the full legalese.

Legal Aid has nothing whatsoever to do with the payment of judges. It's a system for providing access to the court system for people who can't afford to do it for themselves.

It isn't controlled by local authorities. It's administered by the Legal Aid Agency, which is an agency of central government.

Local authorities have no role in running the court system, which is administered by the Courts and Tribunals Agency (also an agency of the MoJ)

The bulk of police salaries is paid centrally by the Home Office through the Police Fund, which is administered by the local Police & Crime Commissioner. The additional item in your Council Tax bill (technically known as a "precept") is basically a means by which the Commissioner can raise additional funds, subject to limits on his or her ability to increase the precept from year to year.

I can't wait for your private prosecutions against named judges. With your detailed grasp of the operation of the court system, I can't imagine how anything could possibly go wrong.

the court is under no obligation, the obligation is on the petitioner to serve documents. Fnord: I'm speaking from the last six years of experience over a hundred cases through the courts of England and Wales. Oh, and there's also: http://www.justice.gov.uk/cour... Generally, though, judges are satisfied with nothing less than signatures on the N210.

First check your sub domain is not on the list for which they are allowed to fail to return a response, see http://www.noticeoflawsuit.com...
- if so, they are accusing you directly of hosting malware, probably best check that out first...

Otherwise, if you are not on that list then it looks to me like they are violating the order if they are failing to return response for your subdomain. You would need to collect evidence (failed dns resolutions etc.), and evidence of your costs (alternative service provision, trips to check security manually, don't forget to charge your time at normal daily rate... etc.) and then you could sue them - since they have UK presence. Class action is not an option (usually in the UK) but small claims is, although it costs, but it may be worth it depending on how much damage they have done you. Remember you are not challenging the US court order but rather MS failure to deliver continued dns service to subdomains not on the court order (as it implies they will). If you are UK based and since MS has UK presence, UK court is probably correct venue. If (and IANAL) this is feasible, then it would be best if lots of affected people did it at once - since like most courts MS has to file defence / turn up, or they lose, and if there are a _lot_ of cases all at once...

Before small claims court you are supposed to try and resolve the issue and there are some rules (letter before action, http://www.justice.gov.uk/cour...) - basically you can start writing complaint letters to MS in the UK (where you may sue) and cc MS in the US, and you can start costing them lawyer time right now, for very little cost and essentially no risk to yourself.

Or maybe talk to the EFF, they might get involved in the US because if MS have ceased service to legit users not on the list in the order and not hosting malware, then they may be in violation of their own court order. EFF might want to get involved at next stage and submit Amicus Curiae brief on behalf of innocent users.

The UK does however also have a list of vexatious litigants:

http://www.justice.gov.uk/courts/vexatious-litigants

These are people who can no longer bring civil suits because they have taken the piss too much. If the BPI files too many frivolous lawsuits it's staff (likely it's lawyers) will find themselves no longer able to practice in civil suits because they will become named on this list.

Ok, so I spoke to an expert in company law today about this, and basically the rules on multi-jurisdiction incorporation come down to whatever each country's laws say. So you can have a company operating in different jurisdictions, provided it complies with the rules for incorporation in both countries.

Obviously is is possible for a company to work in different countries, otherwise how would it be able to set up/own/run a subsidiary in that country.

Do you mean to say that if the court in India order Google India to share private emails of American Senators, Google USA has to comply,since these are "same entities"? Keep in mind, that by undergoing incorporation in India, Google India is obligated to follow India's jurisdiction.

I'm going to use the Google UK because I have better access to UK legal and corporate stuffs, so here we go, after some digging:

So, the UK version is Google UK Ltd (a private company limited by shares). You can find details at Companies House (the site doesn't seem to like linking). According to this site, Google UK Ltd is wholly owned by Google International LLC (a US limited liability company). According to this document (and the previous site, but this is probably more reliable; there's at least one mistake/out of date bit of info on that one), Google International LLC is wholly owned by Google Inc (the US public company).

Aren't group structures fun...

So, let's say Google UK Ltd breaks English law, the principle of incorporation probably means that any judgment can only be enforced against Google UK Ltd. However, were an English court to issue a judgment against Google Inc, they might be able enforce it against Google UK Ltd (due to it being an asset of Google International LLC and thus of Google Inc. That will depend on the various rules of tracing etc.

Now, can Google Inc be sued in the UK? Probably. While not conclusive, there is this case. In this one, Google Inc and Google UK Ltd were sued for defamation under English law. At paragraph 2, the court notes that Google Inc is a US-registered company, and at paragraph 4, that Google UK Ltd was "improperly joined" to the proceedings, so aren't relevant. Google Inc had applied to the court to not exercise its jurisdiction (under CPR 11(1) and (6) - if you want more details, examples of when claim forms can be served out of jurisdiction - that is, on foreign persons - can be found in 6D PD 3.1 here).

It's not conclusive because the court decided not to exercise its jurisdiction because it didn't think the claim had a decent chance of success, rather than because it didn't think it had jurisdiction. However, it may be being appealed.

Anyway, so yes; if court in the UK ordered Google UK Ltd (or Google Inc) to hand over private emails of US senators, either Google would be required to do so, or face a fine for contempt of court (which, if made against Google Inc might be enforceable by seizing Google UK Ltd, as an asset of Google Inc - but probably wouldn't work the other way around unless there was a statutory method of going back up the chain). It could try to dispute jurisdiction, but could lose.

International law doesn't really come into it, as it is all done within each country's own jurisdiction (and international law is fairly wishy-washy anyway).

So... erm, yes, isn't law fun, or something?

Ok, so I spoke to an expert in company law today about this, and basically the rules on multi-jurisdiction incorporation come down to whatever each country's laws say. So you can have a company operating in different jurisdictions, provided it complies with the rules for incorporation in both countries.

Obviously is is possible for a company to work in different countries, otherwise how would it be able to set up/own/run a subsidiary in that country.

Do you mean to say that if the court in India order Google India to share private emails of American Senators, Google USA has to comply,since these are "same entities"? Keep in mind, that by undergoing incorporation in India, Google India is obligated to follow India's jurisdiction.

I'm going to use the Google UK because I have better access to UK legal and corporate stuffs, so here we go, after some digging:

So, the UK version is Google UK Ltd (a private company limited by shares). You can find details at Companies House (the site doesn't seem to like linking). According to this site, Google UK Ltd is wholly owned by Google International LLC (a US limited liability company). According to this document (and the previous site, but this is probably more reliable; there's at least one mistake/out of date bit of info on that one), Google International LLC is wholly owned by Google Inc (the US public company).

Aren't group structures fun...

So, let's say Google UK Ltd breaks English law, the principle of incorporation probably means that any judgment can only be enforced against Google UK Ltd. However, were an English court to issue a judgment against Google Inc, they might be able enforce it against Google UK Ltd (due to it being an asset of Google International LLC and thus of Google Inc. That will depend on the various rules of tracing etc.

Now, can Google Inc be sued in the UK? Probably. While not conclusive, there is this case. In this one, Google Inc and Google UK Ltd were sued for defamation under English law. At paragraph 2, the court notes that Google Inc is a US-registered company, and at paragraph 4, that Google UK Ltd was "improperly joined" to the proceedings, so aren't relevant. Google Inc had applied to the court to not exercise its jurisdiction (under CPR 11(1) and (6) - if you want more details, examples of when claim forms can be served out of jurisdiction - that is, on foreign persons - can be found in 6D PD 3.1 here).

It's not conclusive because the court decided not to exercise its jurisdiction because it didn't think the claim had a decent chance of success, rather than because it didn't think it had jurisdiction. However, it may be being appealed.

Anyway, so yes; if court in the UK ordered Google UK Ltd (or Google Inc) to hand over private emails of US senators, either Google would be required to do so, or face a fine for contempt of court (which, if made against Google Inc might be enforceable by seizing Google UK Ltd, as an asset of Google Inc - but probably wouldn't work the other way around unless there was a statutory method of going back up the chain). It could try to dispute jurisdiction, but could lose.

International law doesn't really come into it, as it is all done within each country's own jurisdiction (and international law is fairly wishy-washy anyway).

So... erm, yes, isn't law fun, or something?

It's a little odd that Wikimedia filed a separate action; I'd think a simple demurral would make the original case go away more cheaply.

Apparently in the previous case with Xenforo, Internet Brands (who had purchased Jelsoft/VBulletin) sued xenForo and its former employees both in the UK and in California. And this is despite Internet Brands having its' HQ in California and this is also despite the fact that most of the parties involved: Jelsoft, VBulletin, and xenforo, also had all originated from California and were California-based at the time as well (and I assume that most of those former employees in question, the ones who started Xenforo, must also have been located in California as well).

On 4 October 2010, "Internet Brands commenced a lawsuit in the courts of England and Wales against XenForo, and its founders, Kier, Mike and Ashley".[5]

On 29 October 2010, Internet Brands filed a second lawsuit in the United States District Court for the Central District of California through its wholly owned subsidiary vBulletin Solutions, Inc. against xenForo Ltd., and its founders Kier, Mike and Ashley. The lawsuit alleges "widespread infringement and unlawful exploitation" of vBulletin's source code and "equally damaging misappropriation of trade secrets" developed and owned by vBulletin with "investments of millions of dollars over the last ten years." The lawsuit further alleges that the developers of XenForo Ltd. "took with them virtually every type of document a competitor would need to enter the market and unlawfully create a competing bulletin board software program." [6]

But since the lawsuit was first started in the UK -- that limited the scope of the lawsuit in California. See this one paragraph (in current need of citation) from their Xenforo Wikipedia page:

On 7th February 2011, Judge Manuel Real denied all three motions by XenForo and its developer Kier Darby, to dismiss the case on grounds of forum non conveniens, non-subject matter jurisdiction and personal jurisdiction in California arguing that the California lawsuit is duplicative of the UK action[citation needed].

My guess is that the Wikimedia Foundation probably took preemptive action in California to make sure that IB (Internet Brands) wouldn't attempt to file the case in the UK against Wikimedia and the two volunteers, as IB did with xenForo and their former employees when IB knew that those guys really didn't have the resources to easily fight from across the world.

But then, this is just a guess. I'm not a lawyer. I'm not even sure what a "demurral" is (except for what its standard definition is on dictionary.com). Would a "demurral" be enough to keep a potential lawsuit on your jurisdictional home turf? To a layman like me, but it doesn't even make sense that in the case of xenForo vs. IB (Jelsoft/VBulletin), that the UK got in the middle of a lawsuit between two parties that were mostly based in the same foreign country and in the same state abroad.

The UK courts tend to award reasonable costs. If a complaint is sufficiently legitimate that it's seen as a sensible use of court time then it's quite likely that the judge just wouldn't award costs in that instance, or might award costs proportionate to the loser's own legal costs.

Have a read of this:
http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part44#IDADEICC

I recall one instance where the winner has been told to pay the costs of the loser, but my Google Fu needs levelling up before I can find that.

http://www.justice.gov.uk/tribunals/sscs/

>"This is my experience too. I think there actually is legal precedent that specifically says a fax transmitted signature/document is equivalent. Until there's precedent saying the same thing for scanned&emailed documents, it's not going to change." //

I'm pretty sure such e-filing was taken care of in the Civil Procedure Rules in the UK in about 1998.

"[P]aragraph 15.1.A(2) of the Practice Direction to Part 52 of the Civil Procedure Rules" according to this link http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/court-of-appeal/civil-division/filing.htm. I don't care enough to check if that statute citations is right.

I think you'll find that's not true... Prison populations are exploding.

Both 'plenty of space' or exploding are some way off the mark. They're growing in the region of 1-2% a year. Sending a lot of people to prison is a luxury we can't afford.

The UK FoI act was passed in 2000, here's the page for making requests:

http://www.justice.gov.uk/requestinginformation.htm

Most of what you described above is promissory estoppel, however that does not really appear to apply in the wider News Corp vs Google discussion unless Google was given explicit permission to cache and present News Corp stuff at e.g. news.google.{com,co{.uk,.au,...}}. One might argue that robots.txt should be considered implicit permission, but I don't think that argument would be a safe one to rely upon at trial.

Some of what you describe is also covered by laches (which is essentially a form of estoppel) and limiting statutes.

"... we're seeing too much of is the use of a C&D when there is no damage under any normal or proper reading of the law, as an attempt to chill discussion"

This statement is entirely compatible with my description of the general case.

Alternatively, there is "too little rejection of baseless C&Ds when served on risk-averse corporate entities", which extends to other devices like DMCA takedown notices or requests to disclose contact information and other details of customers to certain classes of complainant.

If an aggressive but baseless demand is not repelled, that is just the adversarial system working more or less as expected.

You also can't argue/negotiate one way in public, then argue the opposite in court, as a matter of public policy, and can argue estoppel in such cases.

Unless a promise is made that clearly remains open through the period of the complaint, then promissory estoppel cannot be relied upon as a defence.

However, private law courts can consider doubletalk wherein a party says one thing in court and another thing in public, and take measures if and as appropriate. This is generally lumped under "unconscionability" in common law and is covered under the overriding objective sections of court rules of procedure.

In the county courts of England and Wales, this is covered under CPR Rule 1 which requires the courts and parties to behave in a just manner and which gives the court enormous latitude (and obligation) to assure this.

In U.S. District courts, this is covered by the second sentence of FRCP Rule 1 which imposes on the court a general obligation to be just that must color its whole reading of all the other Rules.

However in the U.S. District courts it is common only for litigation specialists to draw the attention of the other side and the court to obligations arising under FRCP Rule 1, and many DJs are quite passive in the application of Rule 1 again because the usual expectation in an adversarial system is that a party will draw the court's attention to its arguments, rather than the court finding them on its own accord. (This varies on a judge by judge basis, as it does frankly in the County Courts in England and Wales, and probably most other common law jurisdictions too).

"Such is life when you get caught over-reaching"

Yes. Also, litigation is costly and risky and consequently good lawyers will tell their clients that a compromise is better than a contest, even when their clients are well-funded public agencies. Good judges in private law courts of first instance in all systems will also strongly urge a privately negotiated compromise rather than a full contested trial.

"they give the law the flexibility it needs to allow judges to serve up justice in certain situations, rather than just pick the statutes from column a and the consequences from column b."

English judges participated in three separate revolutions in order to avoid having statute or decree override their ability to resolve private disputes in a just and equitable fashion.

In modern times, legislators will engross rules consolidated by judges into statutory instruments in almost every jurisdiction in the world. Codification is efficient because it clarifies the law for all parties, and abstracts away (in

This applies to the courts in England and Wales. Scotland and Northern Ireland have their own court rules.

The codification of the Civil Procedure Rules which took effect 26 April 1999 abolished the concept of "affirmative defence" per se. Defences must now be consistent with CPR 16.5, which requires that the defendant's case be fully outlined at the time of filing the Defence with the court.

Previously, affirmative defences were filed and notified in a different manner from disagreements over fact or law. Affirmative defences were generally those that could be decided by the District Judge alone in the event that there was no dispute over fact or the authority for the applicable legal principles.

In defamation cases there is a pre-action protocol which must be followed with the coming into force of this pre-action protocol in April 2006. Pay attention to 3.6. This is a double-edged sword in that a defendant may be found to be unnecessarily increasing costs by refusing a quick and effective remedy suggested by the Claimant or a third party (e.g., a full retraction and public apology) and -- if the matter proceeds to trial in the courts -- the defendant may be penalized on costs to the extent of paying all the Claimant's and court costs. Alternatively, a claimant who does not accept a reasonable remedy suggested by the Defendant or a third party (e.g., a retraction, apology, and the payment of money to offset any likely damage) may be penalized on costs to the extent of paying all the Defendant's and court costs.

Costs are dealt with in CPR rules 43-48, and particularly in CPR rule 44.3 - for defamation cases, note 44.3(5) -- simply reasserting the truth that a statement that the Claimant says is untrue and defamatory is an excellent way to find oneself liable for all the costs in the case, which generally vastly surpasses any damages awarded to a successful Claimant. The Defendant, if relying on a defence of truth, must be prepared to demonstrate the truth of the statement, and must also prove that it was not exaggerated or framed in a defamatory way. That is, the Defendant must help the court weigh the question of whether what was published was actually true, and that it was published in a way not designed to cause real, avoidable damage to the Claimant.

Generally speaking a strong public-interest argument has trumped a malice (i.e., deliberately damaging publication) argument in recent defamation cases.

Public-interest arguments generally require the truth of the statement to be demonstrated.

By contrast, it is fairly easy to demonstrate that a published statement was deliberately designed to damage the reputation enjoyed by the Claimant (this is especially true in the case of quacks, who earn quite a lot of money because they are liars and charlatans), and arguments about proportionality carry weight in the courts (e.g., is calling the quacks liars in a widely-read publication a better approach than writing privately to a government regulator, or an M.P.?).

Getting a Defence right in a defamation case is difficult, expensive work that requires a specialist litigation unit. Uncertainties over costs generally either pressurize Defendants into making an early pre-trial settlement offer that is worse (for the Defendant) than what could be reasonably expected at trial, or lead Defendants into bargain hunting on solicitors and barristers with the goal of keeping their own costs low "just in case".

On the other hand, being a Claimant in a defamation case also has risks, and the courts have been assessing costs against unsuccessful and partially successful Claimants in recent years. This has significantly dented the reputation of one well known solicitor's firm specializing

This applies to the courts in England and Wales. Scotland and Northern Ireland have their own court rules.

The codification of the Civil Procedure Rules which took effect 26 April 1999 abolished the concept of "affirmative defence" per se. Defences must now be consistent with CPR 16.5, which requires that the defendant's case be fully outlined at the time of filing the Defence with the court.

Previously, affirmative defences were filed and notified in a different manner from disagreements over fact or law. Affirmative defences were generally those that could be decided by the District Judge alone in the event that there was no dispute over fact or the authority for the applicable legal principles.

In defamation cases there is a pre-action protocol which must be followed with the coming into force of this pre-action protocol in April 2006. Pay attention to 3.6. This is a double-edged sword in that a defendant may be found to be unnecessarily increasing costs by refusing a quick and effective remedy suggested by the Claimant or a third party (e.g., a full retraction and public apology) and -- if the matter proceeds to trial in the courts -- the defendant may be penalized on costs to the extent of paying all the Claimant's and court costs. Alternatively, a claimant who does not accept a reasonable remedy suggested by the Defendant or a third party (e.g., a retraction, apology, and the payment of money to offset any likely damage) may be penalized on costs to the extent of paying all the Defendant's and court costs.

Costs are dealt with in CPR rules 43-48, and particularly in CPR rule 44.3 - for defamation cases, note 44.3(5) -- simply reasserting the truth that a statement that the Claimant says is untrue and defamatory is an excellent way to find oneself liable for all the costs in the case, which generally vastly surpasses any damages awarded to a successful Claimant. The Defendant, if relying on a defence of truth, must be prepared to demonstrate the truth of the statement, and must also prove that it was not exaggerated or framed in a defamatory way. That is, the Defendant must help the court weigh the question of whether what was published was actually true, and that it was published in a way not designed to cause real, avoidable damage to the Claimant.

Generally speaking a strong public-interest argument has trumped a malice (i.e., deliberately damaging publication) argument in recent defamation cases.

Public-interest arguments generally require the truth of the statement to be demonstrated.

By contrast, it is fairly easy to demonstrate that a published statement was deliberately designed to damage the reputation enjoyed by the Claimant (this is especially true in the case of quacks, who earn quite a lot of money because they are liars and charlatans), and arguments about proportionality carry weight in the courts (e.g., is calling the quacks liars in a widely-read publication a better approach than writing privately to a government regulator, or an M.P.?).

Getting a Defence right in a defamation case is difficult, expensive work that requires a specialist litigation unit. Uncertainties over costs generally either pressurize Defendants into making an early pre-trial settlement offer that is worse (for the Defendant) than what could be reasonably expected at trial, or lead Defendants into bargain hunting on solicitors and barristers with the goal of keeping their own costs low "just in case".

On the other hand, being a Claimant in a defamation case also has risks, and the courts have been assessing costs against unsuccessful and partially successful Claimants in recent years. This has significantly dented the reputation of one well known solicitor's firm specializing

This applies to the courts in England and Wales. Scotland and Northern Ireland have their own court rules.

The codification of the Civil Procedure Rules which took effect 26 April 1999 abolished the concept of "affirmative defence" per se. Defences must now be consistent with CPR 16.5, which requires that the defendant's case be fully outlined at the time of filing the Defence with the court.

Previously, affirmative defences were filed and notified in a different manner from disagreements over fact or law. Affirmative defences were generally those that could be decided by the District Judge alone in the event that there was no dispute over fact or the authority for the applicable legal principles.

In defamation cases there is a pre-action protocol which must be followed with the coming into force of this pre-action protocol in April 2006. Pay attention to 3.6. This is a double-edged sword in that a defendant may be found to be unnecessarily increasing costs by refusing a quick and effective remedy suggested by the Claimant or a third party (e.g., a full retraction and public apology) and -- if the matter proceeds to trial in the courts -- the defendant may be penalized on costs to the extent of paying all the Claimant's and court costs. Alternatively, a claimant who does not accept a reasonable remedy suggested by the Defendant or a third party (e.g., a retraction, apology, and the payment of money to offset any likely damage) may be penalized on costs to the extent of paying all the Defendant's and court costs.

Costs are dealt with in CPR rules 43-48, and particularly in CPR rule 44.3 - for defamation cases, note 44.3(5) -- simply reasserting the truth that a statement that the Claimant says is untrue and defamatory is an excellent way to find oneself liable for all the costs in the case, which generally vastly surpasses any damages awarded to a successful Claimant. The Defendant, if relying on a defence of truth, must be prepared to demonstrate the truth of the statement, and must also prove that it was not exaggerated or framed in a defamatory way. That is, the Defendant must help the court weigh the question of whether what was published was actually true, and that it was published in a way not designed to cause real, avoidable damage to the Claimant.

Generally speaking a strong public-interest argument has trumped a malice (i.e., deliberately damaging publication) argument in recent defamation cases.

Public-interest arguments generally require the truth of the statement to be demonstrated.

By contrast, it is fairly easy to demonstrate that a published statement was deliberately designed to damage the reputation enjoyed by the Claimant (this is especially true in the case of quacks, who earn quite a lot of money because they are liars and charlatans), and arguments about proportionality carry weight in the courts (e.g., is calling the quacks liars in a widely-read publication a better approach than writing privately to a government regulator, or an M.P.?).

Getting a Defence right in a defamation case is difficult, expensive work that requires a specialist litigation unit. Uncertainties over costs generally either pressurize Defendants into making an early pre-trial settlement offer that is worse (for the Defendant) than what could be reasonably expected at trial, or lead Defendants into bargain hunting on solicitors and barristers with the goal of keeping their own costs low "just in case".

On the other hand, being a Claimant in a defamation case also has risks, and the courts have been assessing costs against unsuccessful and partially successful Claimants in recent years. This has significantly dented the reputation of one well known solicitor's firm specializing

I am not a litigator, so I really never go to court.

Unfortunately for the defendant the part after the comma does not seem to have occurred to his counsel.

the defense did not counter with an alternative

There is no reason to expect that even in an inquisitorial system of private law that the judge would offer up the alternative to one of the parties. The parties are necessarily adversarial and are expected to engage professionally and completely, surely?

Proportionality flew out the window, but unfortunately that is not an explicit overriding goal of FRCP (although you can read it into Rule 1).

In England and Wales CPR Rule 1 (in effect since 1999) says:

1.1
(1)These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

(2)Dealing with a case justly includes, so far as is practicable -

        (a)ensuring that the parties are on an equal footing;

        (b)saving expense;

        (c)dealing with the case in ways which are proportionate -

                    (i)to the amount of money involved;

                    (ii)to the importance of the case;

                    (iii)to the complexity of the issues; and

                    (iv)to the financial position of each party;

        (d)ensuring that it is dealt with expeditiously and fairly; and

        (e)allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases.

1.2
The court must seek to give effect to the overriding objective when it -

        (a)exercises any power given to it by the Rules; or
        (b)interprets any rule subject to rules 76.2 and 79.2.

1.3
The parties are required to help the court to further the overriding objective

None of this was novel at the time, and likewise none of it is alien to the U.S. federal court system now, so it is shocking when a party's counsel or a judge does not consider his or her obligation to the system of justice as a whole.

Consequently, I think it would be useful to codify a close equivalent of England & Wales's CPR Rule 1 as a new FRCP Rule 1. Moreover if the new Rule 1 were applied assiduously in the U.S. District Courts it would be a substantial reform, particularly when considering the impact of CPR 1.3 on the recording industry cases.

Indeed. In response to the UK's "consulation" on criminalising possession non-realistic sexual images of under-18s, I raised the issue of anal sex with the Rice Krispie Elf "Crackle", and asked them if the Government was planning to introduce an age of consent for elves and other non-existent creatures... (Needless to say, the Government's consultation response document doesn't answer this question - it's full steam ahead with the legislation, ignoring the many flaws and problems pointed out to them.)

"If I photograph a cherub in the UK, say from a painting or a sculpture, would that also qualify me?"

Probably not, unless the original painting was deemed to have the appearance of a photograph, in which case you would have made a reference to a pseudo-photograph. It is possible, however, that such a photograph could be considered to be an indecent photograph of a (non-existant) child and therefore you would have "taken an indecent photograph of a child". I don't know of any case where the latter has been tested in court.

The government is considering legislation to criminalise any visual representation of "child sexual abuse", which includes any representation (cartoon, scuplture, etc) with "an excessive focus on a child's genitalia".

Whether or not that image should be considered child porn should be up to the courts to decide.

And from January, according to Government guidance, it seems the IWF are going to be handling reports of "extreme pornography" (that criminalises possession of adult images considered "extreme" and "disgusting", even those involving consenting adults, staged acts, and screenshots from legal films), which is broader and far vaguer than child porn law - so if they start blocking anything that might "potentially" be extreme, I worry that this could mean a lot more sites being blocked.

This also shows that they are willing to blacklist mainstream sites - well, at least they get points for being consistent I suppose (there`s nothing worse than selective enforcement) - but the point is that images that might "potentially" come under the extreme porn law have been found on mainstream non-porn sites. Now even if it may be the case that such a site would never be prosecuted, this shows that the IWF may happily censor any site that has a potentially extreme image on it, no matter what site it is on, or for what purpose it is there for.

It is also misleading that the site returns a fake 404 message - Virgin Media do this, although apparently Demon do not. Is this something decided on a per-ISP level, and something worth complaining to them about?

It's not like Wikipedia is hosted in some lawless country - it's hosted in the US, which has similar laws on child porn, and if it was really a problem it would be easy to cooperate with the US to remove the images.

Amazon also has these images, which are not blocked.

Except that in the UK, it's not called the Department of Justice, it's called the Ministry of Justice. Doesn't that have a nice, warm ring to it?

You're correct it's not illegal - and note that it's not even illegal in the EU, as that quote is referring to realistic faked child porn. See the section http://en.wikipedia.org/wiki/Child_pornography#United_Kingdom . Also http://en.wikipedia.org/wiki/Lolicon#Legal_issues_elsewhere has some info on the legal status of non-realistic child depictions.

They plan to change this in the UK, however, criminalising all sexual non-realistic images of under 18s:

http://tech.slashdot.org/article.pl?sid=08/05/28/2242228
http://www.justice.gov.uk/publications/non-photographic-depictions.htm

A particular curiousity is that the age of consent is 16. So sex with a 16/17 year old is legal, but a drawing of the same act, even if entirely drawn from one's imagination, will soon be illegal.

The Government claims that these images are "often very realistic".

That's right, this is a ban on "very realistic non-realistic images" of children...

Given the horribly loose language used in the "extreme pornography" law recently passed in the UK and that the extreme pornography law covers staged acts as well as real ones I wouldn't be surprised if the language used in this law is also horribly loose. It's probably unlikely to distinguish between whether the drawing depicted a real act or not.

They've made it clear that this will cover drawings that are nothing to do with real acts.

I agree entirely with your comment - I suspect that despite assurances, this will be just as vague a law, if not more so. According to the consultation response document, they are borrowing the term "of an obscene character" that exists in the "extreme porn" law. Which is not the same test that's in the Obscene Publications Act (that an image must deprave and corrupt). I'm sure that mainstream works won't be caught, but all it means that material on your computer, imported from abroad, or downloaded from the Internet, gets seen as "obscene" or "not a work of art", and will be illegal. Some police chiefs can't wait to be able to arrest someone simply because of Hentai on their computer.

FTA:

"The government has acknowledged that paedophiles may be circumventing the law by using computer technology to manipulate real photographs or videos of abuse into drawings or cartoons."

But under the new Criminal Justice and Immigration Act 2008, Section 69:

"References to a photograph also include- a tracing or other image, whether made by electronic or other means (of whatever nature)- which is not itself a photograph or pseudo-photograph, but which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both)"

So not only is it absurd to suggest that all drawings need to be criminalised because pedophiles are allegedly converting child abuse images into them, this simply isn't a loophole anymore anyway!

What if pedophiles start converting images of children into page 3 girls, will they need to be criminalised too?

The claim that this material is already illegal to sell or distribute is also bogus (they made this same false claim with the extreme porn law - on that note, expect to see "extreme" adult cartoon images made illegal in a few years). The Obscene Publications Act requires a jury to believe that the material would "deprave or corrupt" those likely to see it, but these new laws do not have such a test, instead using a dictionary definition of the word "obscene" (i.e., disgusting etc). I suspect that a jury made up of Daily Mail readers would consider plenty of Manga and Hentai to be illegal.

Also see the official announcement, and consulation and consultation response documents.

I fear that to the police, hentai is not merely something that may be unintentionally caught, but it is a direct intended target. In the response to the "extreme porn" law (a different law, but the comment is relevant), Greater Manchester police stated "Would like to see account of several child cartoon images e.g. Hentai material."

And note that whilst the age of consent is 16 in the UK, the age for child porn was raised to 18 in the Sexual Offences Act 2003. So sex with a 17 year old is legal, but a fantasy drawing of someone who might look 17 would be illegal!

The Register has a better write up.

Will South Park's Red Rocket be illegal?

FTA:

"The government has acknowledged that paedophiles may be circumventing the law by using computer technology to manipulate real photographs or videos of abuse into drawings or cartoons."

But under the new Criminal Justice and Immigration Act 2008, Section 69:

"References to a photograph also include- a tracing or other image, whether made by electronic or other means (of whatever nature)- which is not itself a photograph or pseudo-photograph, but which is derived from the whole or part of a photograph or pseudo-photograph (or a combination of either or both)"

So not only is it absurd to suggest that all drawings need to be criminalised because pedophiles are allegedly converting child abuse images into them, this simply isn't a loophole anymore anyway!

What if pedophiles start converting images of children into page 3 girls, will they need to be criminalised too?

The claim that this material is already illegal to sell or distribute is also bogus (they made this same false claim with the extreme porn law - on that note, expect to see "extreme" adult cartoon images made illegal in a few years). The Obscene Publications Act requires a jury to believe that the material would "deprave or corrupt" those likely to see it, but these new laws do not have such a test, instead using a dictionary definition of the word "obscene" (i.e., disgusting etc). I suspect that a jury made up of Daily Mail readers would consider plenty of Manga and Hentai to be illegal.

Also see the official announcement, and consulation and consultation response documents.

I fear that to the police, hentai is not merely something that may be unintentionally caught, but it is a direct intended target. In the response to the "extreme porn" law (a different law, but the comment is relevant), Greater Manchester police stated "Would like to see account of several child cartoon images e.g. Hentai material."

And note that whilst the age of consent is 16 in the UK, the age for child porn was raised to 18 in the Sexual Offences Act 2003. So sex with a 17 year old is legal, but a fantasy drawing of someone who might look 17 would be illegal!

The Register has a better write up.

Will South Park's Red Rocket be illegal?

A large part of the motivating force behind this law are the anti-pornography feminists.

This has been my experience following the progress of the law too. And people should note that that's specifically anti-porn feminists. I know many sex-positive and anti-censorship feminists opposing this law.

The Government's so-called "evidence" for this law, the Rapid Evidence Assessment, was in fact written by three feminists with known anti-porn views, and has been criticised widely by academics.

One of my friends, a feminist who was hosting a speech at a feminist conference about this law, started receiving harrassment and abuse (in fact from charliegrrl, and other anti-porn feminists), unable to believe that another feminist could oppose the law, and doing their best to stifle any debate.

The height of the madness was a petition started by group mediawatch-uk - I can understand this getting support from the anti-sex religious groups, but to my disbelief, I saw feminists giving their support to this pro-censorship anti-sex organisation, that would result in criminalising images of a wide range of sexual acts. The worse part is that they play the card of being oppressed feminists - even though they are in bed with organisations in power that are lobbying for these laws, that will persecute and oppress others.

One of the sad things is the way that this mad law has got support from anyone jumping on the anti-porn bandwagon. Even if you think porn is bad, this is still an awful law!

These anti-porn feminists have been waging a gorilla war against porn for the better part of 4 decades. This law is just the beginning of what they'd like to see. They seriously believed that porn causes women to be raped and that seeing porn turns men into rapists. They don't get a lot of attention because most people think they're nuts. I'd say that their success in getting this law as far as it has gotten should change that. If you don't want to live in a society where porn is banned because those in power believe that it turns men into rapists, then you'd better start paying more attention to what radicals like these are doing - and opposing it.

I agree - some are even calling for all porn to be made a hate crime against women.

I agree - whilst I have no general problem with restrictions on children (as long as it is just children, and not adults), I do note that it's only the unpopular things which get restricted or banned: films, computer games, sex (and it's sex viewed "deviant" that is more likely to be restricted), minority religions (like paganism, Wicca), rock music, swearing.

On the other hand - and I honestly don't mean this as flamebait - one could make the same case that mainstream religious books such as the Bible are just as much as a potentially harmful influence on young children as computer games or rock music [*]. Yet far from restricting access to children, it is a legal requirement that all children in the UK be coerced into daily Christian worship in state schools.

[*] Dawkins has reported on a interesting study by George Tamarin on the effects of reading the Bible on children's views of morality ( http://www.abc.net.au/rn/backgroundbriefing/stories/2006/1794986.htm ), which reminds me of the "After viewing some porn, people were more likely to believe rape myths" studies we hear about. Those studies are currently looking sufficient to criminalise some sexual images even for adults here in the UK, yet no one (not even Dawkins!) would suggest this same level of "evidence" is sufficient for restricting access of the Bible to children, let alone criminalising possession of it.

I agree, sadly. Much of the problem is that there are all sorts of studies on various forms of media and its supposed effects, some showing evidence, some not showing evidence, some showing a negative correlation. So overall there's no conclusion one could draw, but those supporting censorship can hand-pick the studies which do supposedly show an effect (even if they are old studies that have been discredited or later contradicted by other studies).

I saw this with the UK Government in its plans to criminalise possession of "extreme" porn - it commissioned three researchers with known anti-pornography views to dig out every possible study which showed some negative effect of porn (even though most the studies applied to porn that isn't being criminalised), producing the Rapid Evidence Assessment.

Now this was criticised by academics in the field as being "extremely poor, based on contested findings and accumulated results. It is one-sided and simply ignores the considerable research tradition into "extreme" (be they violent or sexually explicit) materials within the UK's Humanities and Social Sciences." This statement was signed by ove forty academics - but did anyone pushing for this law pay any attention? Of course, sadly not - instead we continue to hear the Rapid Evidence Assessment being cited as proof that possession of naughty pictures needs to be criminalised.

in an effort to free up more space in British jails.