SEEU Review vol. 6 Nr. 2 (pdf) - South East European University

Dennis J. Farrington, PhDlimited social and recreational use (e.g. certainly not for running a smallbusiness); especially facilities should not be used for peeking at ortransferring pornography; 90 the HEI reserves the right to monitor useractivity, including e-mails; 91 passwords must be kept secure; defamatorymaterial must not be created or transmitted, nor material likely to annoy,inconvenience, or harass others; 92 it is against the rules to distribute909192The offences related to indecency etc. are set out in the Protection of Children Act 1978,the Criminal Justice Act 1988 (as amended by the Criminal Justice and Court ServicesAct 2000), the Criminal Justice and Public Order Act 1994 and the Communications Act2003(as amended by the Serious Organised Crime and Police Act 2005) but technologyevolves constantly. Downloading indecent photographs of children is an offence: R vBowden [2000] 2 WLR 1083 (CA) and knowingly copying, storing or downloading isbeing ‘in possession’: Atkins v DPP [2000] 1 WLR 1247; R v Smith and R v Jayson TheTimes, 23 April 2002 (CA). Misusing university computers can give rise to high-profileprosecutions: R v Fellows (Alban); R v Arnold (Stephen) [1997] 2 All ER 548. It isreasonable to dismiss an employee for gross misconduct in using an office computer tovisit pornographic websites: Thomas v Hillingdon LBC The Times, 4 October 2002(EAT). In Regina v Porter The Times 21 June 2006, the Court of Appeal ruled that, whena person deleted images on a computer but where they then remained on its hard-drive,the person no longer ‘in possession’ of the images if he/she was not able to retrieve them(having deleted and then emptied the recycle bin) because he/she lacked the ITskills/software. Where, however, the images were more easily retrievable from theunemptied ‘recycle bin’, then he/she would remain in possession if the jury concludedthat he/she had the necessary IT skills to readily retrieve such images from the ‘bin’. Ofcourse, a person with greater IT skills and the appropriate software could retrieve theimages from the hard-drive even after the ‘bin’ had been emptied, and hence could still be‘in possession.’As permitted under the Regulation of Investigatory Powers Act 2001 (RIPA) and theTelecommunications (Lawful Business Practice) (Interception of Communications)Regulations 2000, SI 2000/2699 as discussed below. In Copland v UK [2007] ECHR 253,relating to C, an employee of Carmarthenshire College, the ECHR ruled that thecollection and storage of information by an employer of an employee’s telephone, e-mailand internet usage at the place of work was, in the absence of any legal provisions,unjustified. (The facts of the case arose before the enactment of RIPA and theRegulations, which would have regulated the issue domestically.) The Court found‘unpersuasive’ the argument of the UK government that the college was authorised underits statutory powers to do ‘anything necessary or expedient for the purposes of providinghigher or further education’ and this gave it power to act as it did towards C.See Dow Jones and Company Inc v Gutnick [2002] HCA 56; the High Court of Australiaruled that the tort of defamation occurs in the place where people read the offendingmaterial in an e-mail or on a website and not just in the locality where thewebsite’s/organization’s server is located as the ‘place of publication’. The ruling leaves‘publishers’ including HEIs which maintain websites potentially exposed to legal actionin any country for defamation. A search engine, however, is not a publisher for thepurposes of a defamation action; it merely facilitates the finding of information (whetherdefamatory or not) within the web and, even when the owner of the search engine (hereGoogle) was put on notice, there could still be no liability, given the nature of a searchengine, on the basis of any assumed authorisation, approval or acquiescence:Metropolitan International Schools Ltd v Designtechnica Corporation & Others, [2009]30