Clause 49
Coroners and Justice Bill
6:00 pm
Roger Gale (North Thanet, Conservative)
With this it will be convenient to discuss the following: amendment 72, in clause 49, page 29, line 11, leave out ‘disgusting’.
Amendment 428, in clause 49, page 29, line 13, leave out ‘produced’ and insert ‘published’.
Amendment 429, in clause 49, page 29, line 14, at end add
‘of the publisher or of a publishee’.
Amendment 430, in clause 49, page 29, line 15, leave out ‘(as found in the person’s possession)’ and insert ‘on publication’.
Amendment 431, in clause 49, page 29, line 26, at end add
‘of the publisher or of a publishee’.
Amendment 432, in clause 50, page 30, line 19, after ‘extracted’, insert ‘and published’.
Amendment 433, in clause 50, page 30, line 20, at end add
‘of the publisher or of a publishee’.
Amendment 434, in clause 51, page 31, line 13, leave out ‘it is’ and insert ‘he has’.
Amendment 435, in clause 51, page 31, line 14, leave out ‘for the person’ and insert ‘where the prosecution fails’.
Amendment 436, in clause 51, page 31, line 15, leave out ‘a’ and insert ‘no’.
Amendment 437, in clause 51, page 31, line 15, leave out ‘being in possession of’ and insert ‘publishing’.
Amendment 438, in clause 51, page 31, line 17, leave out first ‘not’.
Amendment 439, in clause 51, page 31, line 17, leave out from ‘and’ to ‘it’ in line 18 and insert ‘knew, or had cause to suspect’.
New clause 35—Responsibility for publication of prohibited image—
‘(1) A person has a defence if—
(a) he was not the author, editor or publisher of the prohibited image,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of the prohibited image.
(2) For this purpose “author”, “editor” and “publisher” have the following meanings, which are further explained in subsection (3)—
“author” means the originator of the image, but does not include a person who did not intend that an image originated by him be published at all;
“editor” means a person having editorial or equivalent responsibility for the content of the image or the decision to publish it; and
“publisher” means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the image in the course of that business.
(3) A person shall not be considered the author, editor or publisher of an image if he is only involved—
(a) in printing, producing, distributing or selling printed material containing the image;
(b) in processing, making copies of, distributing, exhibiting or selling a film or sound recording (as defined in Part I of the Copyright, Designs and Patents Act 1988) containing the image;
(c) in processing, making copies of, distributing or selling any electronic medium in or on which the image is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;
(d) as the broadcaster of a live programme containing the image in circumstances in which he has no effective control over the maker of the image;
(e) as the operator of or provider of access to a communications system by means of which the image is transmitted, or made available, by a person over whom he has no effective control.
In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.
(4) Employees or agents of an author, editor or publisher are in the same positions as their employer or principal to the extent that they are responsible for the content of the image or the decision to publish it.
(5) In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a prohibited image, regard shall be had to—
(a) the extent of his responsibility for the content of the image or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the author, editor or publisher.
(6) This section does not apply to any publication which arose before the section came into force.
(7) For the avoidance of doubt, the burden of proving or disproving, as the case may be, any of the facts or matters in subsections (1) to (6) above is on the prosecution.’.